Thursday, December 10, 2009

IDF Completes Review of Goldstone Allegations

The IDF has completed a review of the 36 "most serious" cases of alleged war crimes as cited by Judge Richard Goldstone in his damning report on Operation Cast Lead, and concluded that 30 of them are "baseless accusations," The Jerusalem Post has learned. The other six were found to relate to genuine instances, where operational errors and mistakes were involved.

The IDF is currently finalizing a report in response to the allegations leveled by the Goldstone mission on behalf of the United Nations Human Rights Council. It is expected to becompleted and submitted to Chief of General Staff Lt.-Gen. Gabi Ashkenazi for review in the coming weeks. The army has yet to decide what it will do with the report and whether it will be released to the public.

In addition, there are another 28 MP investigations ongoing that will likely be included in the report.

Since the Israeli government hasn't yet decided what to do with the report, there is a limit to what I can do to analyze it. I would, of course, be interested in seeing Judge Goldstone's reaction to the report. Beyond that, I have a few observations.

1) Israel, for better or for worse, didn't cooperate with the Goldstone inquiry -- a fact that the judge was quite unhappy with. One likely upshot of this means that a lot of potentially exculpatory information was likely not included in the report (through no fault of Judge Goldstone). Hence, it should not surprise us if some not insignificant number of the allegations in the report turn out to have had fair military justification. On the other hand, that fact should not have much salience in the overall credibility of the Goldstone report, since they can only speak with what information they had (we could ask that they be more open to the possibility of missing information or alternative perspectives, but we can't ask that they intuit exculpatory evidence that was specifically withheld from them).

2) Nominally, at least, Judge Goldstone's investigation was only meant to start the process of review, not represent any sort of binding legal conclusion (one of the many areas where the judge was charmingly naive about the public meaning of his project). Consequently, the IDF review is part of what we might call the "Goldstone process".

3) Related to the above, the theoretical call from Goldstone was for both Israel and Palestine to launch credible investigations into the allegations put forward in his report. The definition of a "credible" investigation is, of course, contested. There are reasonable grounds to think that the IDF cannot credibly investigate itself. There are also reasonable grounds to think that it can. "Self-dealing" cannot be the be-all-end-all here, because the demand specifically was for Israel to investigate itself, and Palestine to investigate itself. So the IDF report has to be analyzed on its own merits as to its credibility (and it may not have it).

4) Referral to international legal organs is supposed to be an extraordinary step, taken only when the internal mechanisms of the state in question are either so biased or so dysfunctional as to make justice impossible. The upshot of this is that the IDF report cannot be evaluated de novo -- that is, it is not acceptable or unacceptable based solely on whether it comes to the same conclusions Judge Goldstone would have come to were he the original arbiter. This concept of deference is, I believe, quite well entrenched in the mechanics of international law.

5) The degree to which the report is credible is, in my view, inextricably tied to what the IDF does in the six cases where the IDF concedes some wrongdoing.

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