Bipartisan Attack on International Humanitarian Law

Dr. Stephen Zunes

Stephen Zunes

Editor: Emily Schwartz Greco
Foreign Policy In Focus

In a stunning blow against international law

and human rights, the U.S. House of Representatives

overwhelmingly approved a resolution on Tuesday

attacking the report of the United Nations Human Rights

Council's fact-finding mission on the Gaza conflict.

The report was authored by the well-respected

South African jurist Richard Goldstone and

three other noted authorities on

international humanitarian law, who had been

widely praised for taking leadership

in previous investigations of war crimes in Rwanda,

Darfur, the former Yugoslavia, and elsewhere.

Since this report documented apparent war crimes

by a key U.S. ally, however, Congress has taken

the unprecedented action of passing

a resolution condemning it.

Perhaps most ominously, the resolution also

endorses Israel's right to attack Syria and Iran

on the grounds that they are "state sponsors of terrorism."

The principal co-sponsors of the resolution (HR 867),

which passed on a 344-36 vote, included

two powerful Democrats: House Foreign Relations

Committee chairman Howard Berman (D-CA)

and Middle East subcommittee chairman

Gary Ackerman (D-NY). Democratic majority leader

Steny Hoyer (D-MD) successfully pushed

Democrats to support the resolution

by a more than 6:1 margin, despite the risk

of alienating the party's liberal pro-human rights

base less than a year before critical midterm elections.

The resolution opens with a series of clauses

criticizing the original mandate of the

UN Human Rights Council, which called

for an investigation of possible Israeli war crimes only.

This argument is completely moot, however,

since Goldstone and his colleagues — to

their credit — refused to accept the offer

to serve on the mission unless its mandate

was changed to one that would investigate

possible war crimes by both sides in the conflict.

As a result, the mandate of the mission

was thereby broadened. The House resolution

doesn't mention this, however, and instead

implies that the original mandate

remained the basis of the report. In reality,

even though the report contained

over 70 pages detailing a series of violations

of the laws of war by Hamas, including rocket attacks

into civilian-populated areas of Israel,

torture of Palestinian opponents,

and the continued holding of kidnapped

Israeli soldier Gilad Shalit, there's no acknowledgement

in the 1,600-word resolution that the initial mandate

had been superseded or that the report

criticizes the conduct of both sides.

In fact, despite the report's extensive documentation

of Hamas assaults on Israeli towns — which

it determined constituted war crimes

and possible "crimes against

humanity" — the resolution insists that

it "makes no mention of the relentless

rocket and mortar attacks."

The Goldstone mission report — totaling

575 pages — contains detailed accounts

of deadly Israeli attacks against schools, mosques,

private homes, and businesses no where

near legitimate military targets, which

they accurately described as

"a deliberately disproportionate attack designed

to punish humiliate and terrorize

a civilian population." In particular, the report

cites 11 incidents in which Israeli armed forces

engaged in direct attacks against civilians,

including cases where people were shot

"while they were trying to leave their homes

to walk to a safer place, waving white flags."

The House resolution, however, claims

that such charges of deliberate Israeli attacks

against civilian areas were

"sweeping and unsubstantiated."

Both the report's conclusions and most

of the particular incidents cited were

independently documented in  detailed

empirical investigations released in recent months

by Amnesty International, Human Rights Watch,

and the Israeli human rights group B'Tselem,

among others. Congressional attacks against

the integrity of the Goldstone report,

therefore, constitute attacks against

the integrity of these reputable

human rights groups as well.

Equating Killing Civilians with Self-Defense

In an apparent effort to further discredit
the human rights community,
the resolution goes on
to claim that the report denies Israel's right
to self defense, even though  there was
absolutely nothing in the report that questioned
Israel's right to use military force. 
It simply insists that neither Israelis
nor Palestinians have the right to attack civilians.

The resolution resolves that
the report "irredeemably biased"
against Israel, an ironic charge given that  
Justice Goldstone, the report's principal author
and defender, is  Jewish, a longtime supporter
of Israel, chair of Friends of Hebrew University,
president emeritus of the World ORT
Jewish school system, and
the father of an Israeli citizen.

Goldstone was also a leading opponent
of apartheid in his native South Africa
and served as Nelson Mandela's first appointee
to the country's post-apartheid Supreme Court.
He was a principal prosecutor in the
war crimes tribunals on Rwanda and
the former Yugoslavia, took a leading role
in investigations into corruption in
the UN's "Oil for Food" program in Iraq,
and was also part of investigations
into Argentina's complicity in provided
sanctuary for Nazi war criminals.

Having 80% of the U.S. House of Representatives
go on record attacking the integrity of one
of the world's most respected
and principled defenders of human rights
is indicative of just how far
to the right the U.S. Congress has now become,
even under Democratic leadership.

In doing so, Congress has served notice
to the human rights community that they
won't consider any human rights defenders
credible if they dare raise questions
about the conduct of a U.S. ally.
This may actually be the underlying
purpose of the resolution: to jettison
any consideration of
international humanitarian law
from policy debates in Washington.

The cost, however, will likely be to further
isolate the United States from the rest
of the world, just as Obama was beginning
to rebuild the trust of other nations.

Indeed, the resolution calls on
the Obama administration not only
"to oppose unequivocally any endorsement"
of the report, but to even oppose
unequivocally any "further consideration"
of the report in international fora.

Instead of debating its merits, therefore,
Congress has decided to instead pre-judge
its contents and disregard the actual evidence
put forward. (It's doubtful that any
of the supporters of the resolution
even bothered actually reading the report.)

The resolution even goes so far as
to claim that Goldstone's report is part
of an effort "to delegitimize
the democratic State of Israel and deny it
the right to defend its citizens and
its existence can be used to delegitimize
other democracies and deny them the same right."

This is demagoguery at its most extreme.
In insisting that documenting a given
country's war crimes is tantamount
to denying that country's right to exist
and its right to self defense, the resolution
is clearly aimed at silencing defenders
of international humanitarian law.

The fact that the majority of Democrats voted
in favor of this resolution underscores
that both parties now effectively
embrace the neoconservative agenda
to delegitimize any serious discussion
of international humanitarian law,
in relation to conduct by
the United States and its allies.

License for War?

Having failed in their efforts to convince
Washington to launch a war
against Syria and Iran,
neoconservatives and other hawks
in Washington have now successfully
mobilized a large bipartisan majority of
the House of Representatives
to encourage Israel to act as
a U.S. surrogate: Following earlier clauses
that define Israel's massive military assault
on the civilian infrastructure of the Gaza Strip
as a legitimate defense of its citizens
and make the exaggerated assertion
that Iran and Syria are  "sponsors" of Hamas,
the final clause in the resolution puts
Congress on record supporting "Israel's right
to defend its citizens from violent militant groups
and their state sponsors" (emphasis added).

This broad bipartisan congressional mandate
for a unilateral Israeli attack on Syria and Iran
is extremely dangerous, and appears designed
to undercut the Obama administration's efforts
to pursue a negotiated path
to settling differences with these countries.

Misleading Accusations

There are other clauses in the resolution

that take quotes out of context and engage

in other misrepresentations to make

the case that Goldstone and his colleagues

are "irredeemably biased." 

One clause in the resolution attacks

the credibility of mission member

Christine Chinkin, an internationally respected

British scholar of international law,

feminist jurisprudence, alternative dispute resolution,

and human rights.

The resolution questions her objectivity

by claiming that "before joining the mission,

[she] had already declared Israel guilty

of committing atrocities in Operation Cast Lead

by signing a public letter on January 11, 2009,

published in the Sunday Times, that called

Israel's actions 'war crimes.'"

In reality, the letter didn't accuse Israel

of "atrocities," but simply noted that Israel's attacks

against the civilian infrastructure of

the Gaza Strip were "not commensurate

to the deaths caused by Hamas rocket fire."

The letter also noted that "the blockade

of humanitarian relief, the destruction

of civilian infrastructure, and preventing access

to basic necessities such as food and fuel,

are prima facie war crimes." In short,

it was a preliminary assessment rather

than a case of having "already declared

Israel guilty," as the resolution states.

Furthermore, at the time

of the letter — written a full two weeks

into the fighting — there had already been

a series of preliminary reports from

Amnesty International, Human Rights Watch,

and the International Committee of the Red Cross

documenting probable war crimes

by Israeli armed forces, so virtually

no one knowledgeable of international

humanitarian law could have come

to any other conclusion. As a result,

Chinkin's signing of the letter could

hardly be considered the kind of

ideologically motivated bias that should

preclude her participation

on an investigative body,

particularly since that same letter

unequivocally condemned Hamas

rocket attacks as well.

The resolution also faults the report

for having "repeatedly downplayed or

cast doubt upon" claims that Hamas used

"human shields" as an attempted deterrence

to Israeli attacks. The reason the report

challenged those assertions, however,

was that there simply wasn't any

solid evidence to support such claims.

Detailed investigations by Amnesty International

and Human Rights Watch regarding

such accusations during and subsequent

to the fighting also came to same conclusion.

As with  these previous investigations, 

the Goldstone report determined

that there were occasions when

Hamas hadn't taken all necessary precautions

to avoid placing civilians in harm's way,

but they found no evidence whatsoever

that Hamas had consciously used

civilians as shields at any point

during the three-week conflict.

Despite this, the House resolution makes

reference to a supposed "great body

of evidence" that Hamas used human shields.

The resolution fails to provide a single example

to support this claim, however,

other than a statement by

one Hamas official, which

the mission investigated and

eventually concluded

was without merit. I contacted

the Washington offices of more

than two dozen co-sponsors

of the resolution, requesting

such evidence, and none of them

were able to provide any. It appears,

then, that the sponsors of

the resolution simply fabricated

this charge in order to protect

Israel from any moral or

legal responsibilities for the more

than 700 civilian deaths.

(Interestingly, the report did find

extensive evidence — as did

Amnesty International — that

the Israelis used Palestinians as

human shields during their offensive.

Israeli soldiers testifying at hearings

held by a private group of

Israeli soldiers and veterans

confirmed a number of

such episodes as well. This fact

was conveniently left out of the resolution.)

In another example of misleading content,

the resolution quotes Goldstone as saying,

in relation to the mission's investigation,

"If this was a court of law,

there would have been nothing proven."

However, no such investigation carried out

on behalf of the UNHRC has ever claimed

to have obtained evidence beyond

a reasonable doubt, the normal criterion

for proof in a court of law. This does not,

however, buttress the resolution's insistence

that the report was therefore

"unworthy of further consideration

or legitimacy." What the fact-finding mission

did find was probable cause

for criminal investigations into

possible war crimes by both

Hamas and the Israeli government.

Another spurious claim of bias

is the resolution's assertion that

"the report usually considered

public statements made by

Israeli officials not to be credible,

while frequently giving uncritical

credence to statements taken from

what it called the `Gaza authorities',

i.e. the Gaza leadership of Hamas."

In reality, the report shows that

the mission did investigate such statements

and evaluated them based upon the evidence.

The resolution also fails to mention

that while Hamas officials were willing

to meet with the mission, Israeli officials

refused, even denying them

entrance into Israel. The mission had to fly

Israeli victims of Hamas attacks to Geneva

at UN expense to interview them.

The mission found these Israelis' testimony

credible, took them quite seriously,

and incorporated them into their findings.

The resolution goes on to claim that

the report's observation that

the Israeli government has

"contributed significantly to

a political climate in which

dissent with the government and

its actions . . . is not tolerated" was erroneous.

In reality, it has been

well-documented  — and has been

subjected to extensive debate

within Israel — that the right-wing government 

of Prime Minister Benyamin Netanyahu

has interrogated and harassed

political activists as well as

suppressed criticism and sources

of potential criticism of actions by the Israeli military,

particularly non-government organizations

such as the dissident

soldiers' group Breaking the Silence.

No Accountability

The House resolution is particularly

vehement in its opposition to

the report's recommendation that,

should Hamas and Israeli authorities

fail to engage in credible investigations

and bring those responsible

for war crimes to justice, the matter

should be referred to the International

Criminal Court for possible prosecution.

The resolution insists this is

unnecessary since Israel "has already

launched numerous investigations."

However, Israeli human rights groups

have repeatedly criticized their

government's refusal to launch

any independent investigations

and have documented how the Israeli government

has refused to investigate testimonies

by soldiers of war crimes.

(At this point, the only indictments

for misconduct by Israeli forces

during the conflict have been against

two soldiers who stole credit cards

from a Palestinian home.)

The primary motivation for the resolution

appears to have been to block

any consideration of its recommendation

that those guilty of war crimes

be held accountable. Since the ICC

has never indicted anyone from

a country which had a fair

and comprehensive internal investigation

of war crimes and prosecuted those

believed responsible, the goal of Congress

appears to be that of protecting

war criminals from prosecution.

As a result, the passage of this resolution

isn't simply about the alleged

clout of AIPAC or just another example

of longstanding congressional support

for Israeli militarism. This resolution constitutes

nothing less than a formal bipartisan

rejection of international humanitarian

law. U.S. support for human rights

and international law has always

been uneven, but never has Congress

gone on record by such

an overwhelming margin to discredit

these universal principles so categorically.

This is George W. Bush's foreign policy

legacy, which — through

this resolution — the Democrats,

no less than their Republican counterparts,

have now eagerly embraced.

Stephen Zunes, a Foreign Policy in Focus
senior analyst, is a professor of politics
and chair of Middle Eastern Studies
at the University of San Francisco.

Link here

Sent from Kigali, Rwanda

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