Page last updated at 22:40 GMT, Friday, 6 November 2009

Legal row over Gaza report intensifies

By Barbara Plett
BBC UN correspondent

Richard Goldstone visits Gaza in June 2009
Mr Goldstone's report is seeking accountability

The United Nations-backed report on the Gaza war has triggered major controversy since it was released nearly two months ago.

The lengthy document - named after its main author, the respected international jurist Richard Goldstone - details what it says is evidence of war crimes committed by Israeli soldiers and Palestinian fighters.

It calls on the UN to trigger a process of accountability that could end up in international criminal tribunals.

But the chances of concrete UN action are slim. A resolution that endorses the report, adopted this week by the General Assembly, is non-binding.

And diplomats from all parts of the political spectrum are expecting little if anything from the Security Council - the only UN body with powers of enforcement - as all five of the permanent representatives that wield a veto oppose council involvement.

Unconventional warfare

So why the fuss? Israel especially has launched an intense lobbying campaign against the report, which was most critical about the Israeli military.

Palestinians and human rights groups say 1,400 Gazans were killed in the conflict, although Israel puts the figure at 1,166. Thirteen Israelis, including three civilians, died.

Israeli air strike in Rafah, Gaza, on 13 January 2009
The report accuses Israel of using "disproportionate force" in Gaza

The Israelis argue they were acting in self-defence against years of rocket attacks by the militant Islamist movement Hamas, and took as much care for civilians as possible while fighting a non-conventional force embedded in the population.

They are particularly outraged with the assertion that Israel's offensive was a "deliberately disproportionate attack designed to punish, humiliate and terrorise a civilian population", a conclusion Israeli officials have denounced as completely "removed from reality".

That Mr Goldstone has authored the report amplifies their concern.

"It's given a new credibility to what we call the Israel-bashing movement in the UN," says Lt Col David Benjamin, who served as a legal adviser to the Israeli military during the Gaza war.

"He is one of the major figures in international criminal justice today, and the fact that he has put his signature to the report is very significant."

"I don't think this report is going to go away even if it doesn't go through the Security Council.

"I'm positive that there will be all sorts of efforts to get this into the international criminal court or encourage various individual states to exercise universal jurisdiction against Israelis."

Universal jurisdiction

That is the heart of the matter. Mr Goldstone recommends that the Security Council refer both parties to the International Criminal Court if they fail to conduct credible and independent investigations of the war-crimes charges.

The very mention of the fact that this could end up in the international court at the end of the road creates that extra pressure for domestic investigation
Steve Crawshaw
Human Rights Watch

In doing so he invokes a growing body of international law that has the Israelis worried.

The past two decades have seen the emergence of UN-backed war-crimes tribunals and the International Criminal Court.

Parallel to that has been the development of "universal jurisdiction", where individual governments take it upon themselves to look into charges of war crimes or crimes against humanity committed elsewhere.

"I think all these changes have been very important, and they send signals which simply didn't exist even a decade ago, that if you commit these kinds of crimes, there can be consequences," says Steve Crawshaw of Human Rights Watch.

The Palestinians, although ordered by the report and the UN resolution to conduct their own investigations into charges of war crimes, are determined to use this system to hold Israel to account.

"The process started some time ago and is intensifying now with the Goldstone Report over the question of accountability and fighting against impunity," says the Palestinian representative to the UN, Riyad Mansour.

"If the Security Council continues to drag its feet and refuses to shoulder its responsibility, we have options, many options, and there is no limit to where we can go on this quest of accountability."

Already there have been attempts to arrest Israeli military officers visiting Britain, leading to what Israel's David Benjamin calls a "de facto travel ban".


Lt Col Benjamin insists this is part of a political struggle with no legal merit, what he calls "law-fare" rather than warfare, but does not dismiss the potential impact.

"To adopt the Goldstone report would have very dramatic consequences," he says, "not only for us, but also for any democratic country fighting… a terrorist army with substantial military force but hiding in a civilian population."

Lt Col Benjamin says the same problem could arise in Iraq, Afghanistan and other places.

That may have been a consideration for the US and some Nato countries which either voted against the UN resolution or abstained.

Publicly they expressed concerns that the report was unfairly weighted against Israel, although many supported its call for independent investigations on both sides.

That may be the most important result of the process so far, says Mr Crawshaw.

"The very mention of the fact that this could end up in the international court at the end of the road… creates that extra pressure for domestic investigation."

Either way, human rights groups say, the report and its international profile have reinforced growing efforts to tackle the issues of impunity and lack of accountability for war crimes.

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