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Countering Bias and Misinformation mainly about the Arab-Israel conflict

The UN fact-finding mission - is it impartial

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About Maurice Ostroff
Is the UN Fact-finding mission into Gaza impartial?
By Maurice Ostroff
 
Here are the facts. You decide.
 
Israel is being widely criticized for refusing to cooperate with what it calls the "intrinsically flawed" UN fact-finding team led by Judge Richard Goldstone into alleged violations of international law during the recent Gaza war.
 
As many consider Israel�s allegation of bias by the Human Rights council (HRC) to be merely an excuse, it is worth examining HRC resolution S/9-1 in terms of which, the mission was established.
 
The full text is available at  http://tinyurl.com/oya39d but the gist is contained in operative paragraph 14 (OP14), which states that the HRC decided �to dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission;�
 
Whichever way one interprets OP14, the text unambiguously indicates that the HRC has already �decided� that violations have been committed only by Israel while effectively avoiding any intention to investigate possible violations by anyone else. It fails to call for investigating the casus belli and its preconceived determination of Israel�s guilt is emphasized by the fact that no pretence is made to adhere to the convention of referring to such guilt as �alleged,� until proved. Only Israel is called upon not to obstruct the process of investigation. Other parties to the conflict are evidently exempted from this requirement.
 
But the flaw runs deeper. As in selecting a jury, one would expect extra care to be taken in appointing the members of a mission of this nature to ensure its credibility. It is a sine qua non that the absolute impartiality of persons who sit in judgment of others must be highly visible. The importance of credibility was emphasized by one of Judge Goldstone�s fellow judges in South Africa when the Transvaal Judge President, Bernard Ngoepe recused himself from the rape trial of Jacob Zuma. He said that he did so, even though he disagreed with the reasons given by the defense, because the importance of protecting the credibility of the judiciary weighed heavily with him.
 
It is inexplicable that these considerations as well as the oft-quoted injunction by Lord Hewart that it is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done, are disappointingly absent in the appointment to the mission of a person who has anticipated the mission�s findings by publicly exonerating Hamas and declaring Israel guilty.
 
On January 11, 2009, long before she had an opportunity to even cursorily examine the facts on the ground, Professor Christine Chinkin signed a letter to London's Sunday Times containing the statement that Israel's operations in Gaza amounted to an act of aggression contrary to international law, notwithstanding the rocket attacks by Hamas.
 
Earlier in the year Professor Chinkin was party to a petition calling on the UK government to revoke its support for any new agreements with Israel (The Guardian, January 5, 2009)
 
After a short visit to Gaza with Archbishop Tutu in May last year, she judged Israel guilty in the November 2006 Beit Hanoun incident.  No consideration was given to the reaction of IDF soldiers as described the day after the incident by Steve Linde in the Jerusalem Post, who wrote: "Can you imagine how terrible the artillery troops who fired the shells at Beit Hanun yesterday must be feeling now? After serving in IDF Artillery, I can only say that this is every gunner's nightmare scenario: killing innocent men, women and children."
 
Linde pointed out that in response to Kassam rocket attacks gunners were ordered to "fire at the source" - which they did, firing a dozen or so shells. He adds that whereas the Kassams are intentionally fired at civilian targets, hoping for maximum casualties and damage, the troops who fired at Beit Hanun weren't aiming to hit civilians. They were targeting terrorists firing rockets.
 
Without bothering to solicit an opinion from any military expert Professor Chinkin rejected outright, Israel�s explanation that the shelling was the result of a rare failure in the artillery fire control system and she publicly declared that the incident was a breach of international law by Israel. (The Guardian May 30, 2008). No account was taken of the fact that malfunctions and human error are known to occur even in such highly disciplined fields as space exploration as well as in every army. How else can we explain frequent reports of killing by "friendly fire" of Israeli, British and US soldiers during military operations?
 
Notwithstanding, the defects in the mandate of the mission, Judge Goldstone�s integrity is undisputed and it remains to be seen whether he will be able to impose some balance on a mission governed by a badly biased mandate.
 
In recent open correspondence with Judge Goldstone I raised all the above points and also urged that his mission deal with the gross human rights violations by Hamas in holding Gilad Shalit incommunicado. To his credit Judge Goldstone addressed all my concerns and referred me to his remarks on receiving the MacArthur Foundation Award for International Justice on May 25. He said then "It is not satisfactory that the accountability of Israel for its recent military campaign in Gaza sought by some members of the United Nations Human Rights Council should be partial and not even-handed. The terms of the resolution of the Human Rights Council of April, 2009 appeared to me and many others as being partial and biased
I indicated to the President, Ambassador Martin Uhomoibhi of Nigeria, that I could not agree to do so unless alleged war crimes and human rights violations on all sides were subject to the investigation".
 
Is it naive to hope against all indications to the contrary, that we will be pleasantly surprised not only by a truly objective and even-handed report, but by a constructive one that will make a positive contribution to peace in this region?
 

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