Bipartisan Attack on International Humanitarian Law

by Stephen Zunes Foreign Policy in Focus (FPIF)

www.commondreams.org, November 5, 2009

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 nowhere 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 is Middle East editor for Foreign Policy In Focus. He is a professor of Politics at the University of San Francisco and the author of Tinderbox: U.S. Middle East Policy and the Roots of Terrorism (Common Courage Press, 2003.)

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