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Justice Goldstone's reversal and the question of intent

In its attempts to evade international accountability, Israel is silencing its own civil society, without which it cannot credibly establish intent, or lack of it, under international criminal law
Miri Weingarten
6 April 2011

The struggle for accountability under occupation has led Palestinian victims to depend on international law. Fearful of international legal mechanisms, the Israeli government and its supporters reacted to the Goldstone report with personal intimidation and bullying of Goldstone himself. They seem to have succeeded in bringing about a partial retraction of conclusions that threatened to bring Israeli policy-makers to international trial for the first time. However cautiously worded, Goldstone’s 'reconsideration’ may drive another nail in the coffin of Israeli accountability, and at the same time exacerbate the growing attacks on Israeli Human Rights Defenders.

In his op-ed in the Washington Post, Justice Goldstone seeks to ‘reconsider’ the conclusions of the UN Fact-Finding Mission (FFM) he chaired. Its mandate was to investigate violations of international human rights law and international humanitarian law (war crimes) committed by all sides during and in the context of Israel's offensive on the Gaza Strip between 27 December 2008 and 18 January 2009.

The FFM recommended that its report serve as a basis for domestic investigations and prosecutions by both Israeli and Palestinian authorities, failing which it should be referred to international justice mechanisms.

A key point in the Op-Ed and in the broader debate triggered by the Goldstone report is the matter of willfulness, or criminal intent.
In war crimes trials, the prosecution must prove not only that the accused committed an offence, but also that it was committed ‘with intent and knowledge’. The accused must intend the consequences of his or her act, or be aware that such consequences can be expected in the ordinary course of events.

The Goldstone report concluded that many of the incidents reported regarding the Gaza offensive were the result of ‘deliberate planning and policy decisions’; ‘deliberately disproportionate force’ was applied; there was ‘deliberate damage to civilian property and infrastructure’; and these were ‘designed to humiliate and terrorise a civilian population.’ 

It said the broader policy of siege employed against Palestinians in the Gaza Strip was designed ‘to punish the Gaza population for its resilience and for its apparent support for Hamas’, and could amount to ‘persecution’, a crime against humanity.

With regard to Hamas, the report concluded that in cases where rocket attacks were not directed at military targets and were launched into a civilian population, they too constituted a ‘deliberate attack against a civilian population’ and were therefore war crimes, and may also amount to crimes against humanity.This issue of intent, as raised by the Goldstone report, has been treated by Israel and its supporters as a serious threat. It has also led to unprecedented attacks against dissenting voices within Israel.

Arguably, the only people able to demonstrate the ‘intentionality’ or ‘willfulness’ of a criminal offence are those who committed it, or those close to the culprits, witnesses to the decision-making processes or to the atmosphere within which decisions were made. In the case of Israeli policies toward Palestinians, it is Israeli soldiers, citizens and human rights defenders who have the right level of credibility to establish intent in the violation of human rights.

Since the end of the Gaza offensive, and especially since the publication of the Goldstone report, Israeli groups and individuals have come under sustained attack from the government and its supporters. Common to all those attacked is their access to information relevant to human rights violations and their willingness to make this information public.

The first to be targeted was IDF veterans group Breaking the Silence, which published a report in June 2009, including testimonies by Israeli soldiers who had participated in the attack. These seemed to corroborate the Goldstone Report’s conclusions regarding wanton and deliberate assaults on civilian infrastructure and deliberately disproportionate use of force. In response, Israel’s Prime Minister Binyamin Netanyahu devoted a  speech to the denigration of this group and discrediting of its testimonies, during a visit to London. The Israeli Foreign Ministry followed up by lobbying Dutch, Spanish and UK governments to cut funding to the group, citing interference in Israel’s internal affairs.

Shortly after the adoption of the Goldstone report and recommendations by the UN Human Rights Council, an Israeli right-wing group, Im Tirtzu, alleged that the Goldstone report could not have come about without the aid of 16 Israeli groups that had testified to the FFM.

The result was public defamation, parliamentary incitement and legislation seeking to limit and discredit the activities of Israeli human rights and peace groups, and especially those willing to provide information to international justice mechanisms. Proposals have been made to set up parliamentary committees to investigate groups that assist prosecution of IDF soldiers overseas and a bill seeking to close down NGOs engaging in Universal Jurisdiction is awaiting discussion in the Knesset plenary.

Last but not least is the case of conscript soldier Anat Kamm and journalist Uri Blau. As an office manager for Major General Yair Naveh, then the head of Israel’s Central Command, Kamm was exposed to policies she found problematic within the context of the occupation of the Palestinian territories. When she was discharged, she copied classified documents with a view to exposing these policies. Among them was the policy of ‘targeted assassinations’ of Palestinian activists, whose legality had been examined by Israel’s High Court of Justice. The court’s verdict permitted such actions only if arrest was impossible and if innocent civilians were not hurt. Kamm was present at a meeting during which an assassination was given prior approval without reference to the possibility of arrest, and in which the killing of a number of bystanders was approved, in writing, in advance. The smoking gun of intent was thus established.

In 2008 Kamm gave the documents to Uri Blau, an Israeli investigative reporter for Haaretz, who  published the information in a manner compromising Kamm as a source. The article had been approved prior to publication by the Israeli military censor – but in the aftermath of the Gaza offensive and as the threat of international justice mechanisms grew, the Israeli secret police (shabak) started following Blau, and eventually obtained the incriminating documents. In early 2010 Kamm was secretly detained and held in house arrest for several months under a media gag order, until a report by blogger Richard Silverstein made the affair public.

The case became a saga of defamation against Kamm and Blau, who were portrayed as traitors. Kamm was convicted in February this year of unauthorised transfer of classified materials, under the offence of ‘aggravated espionage’. She is now awaiting her sentence. Blau, who was abroad at the time of Kamm’s arrest, stayed outside the country until assured by the shabak that he would not be indicted. However, when he returned in March this year he was told to expect an indictment.

Public incitement was followed by legislation. In March this year, a draft amendment to Israeli criminal law, nicknamed the ‘Anat Kamm law’, was approved for a vote by the Knesset plenary. It makes transfer of classified documents to unauthorised persons punishable by a 10-year prison term, even if not done with intent to harm state security. In addition, any unauthorised persons (including journalists) holding classified information would be liable for 7 years in jail.

If the public crucifixion of Kamm and Blau is not enough to deter potential leakers of proof of intent of war crimes, this law is designed to achieve that aim.

It is fortunate that the Goldstone report’s recommendations did not rely on the original FFM members to continue the process of accountability, but very presciently recommended that a separate experts’ committee be charged with assessing the local investigations undertaken by Israel and the Palestinian authorities. This committee has already published its conclusions, and the Goldstone process will continue in the UN bodies, irrespective of Goldstone’s personal views.

It remains to be seen whether Israeli activists and groups will also be cowed into silence, or if they will continue to provide the world with the information and insight only they have access to.

The Goldstone report quotes Palestinians as saying that every time a report is published and no action follows, this emboldens Israel and her conviction of being untouchable. The triumphalist use of Goldstone's retraction by Israeli leaders certainly vindicates this claim.

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