October 2, 2009

Justice matters to the US in Kenya, Darfur, and Congo...
Kenya: "And I have urged that the Kenyan government try to find the way forward to handle this themselves, but if that is not possible, and people think it is not, then the names that have been turned over to the International Court of Criminal Justice will be opened, and an investigation will begin, and Kenya will not be making these very tough decisions for itself, which is a kind of rite of passage for democracies, dealing with people and making sure impunity is not permitted."
- Secretary of State Hillary Clinton, August 6, 2009.

Darfur: "The United States supports the International Criminal Court's (ICC) actions to hold accountable those responsible for the heinous crimes in Darfur. We remain determined in our pursuit of both peace and justice in Sudan. The people of Sudan have suffered too much for too long, and an end to their anguish will not come easily. Those who committed atrocities in Sudan, including genocide, should be brought to justice. UN Security Council Resolution 1593, which referred the crimes in Darfur to the ICC, requires the Government of Sudan and all other parties to the conflict to cooperate fully with the ICC and its prosecutor and urges all states and concerned regional organizations to cooperate fully."

- UN Ambassador Susan Rice, March 4, 2009.

Democratic Republic of Congo: "I came to Goma to send a clear message: The United States condemns these attacks and all those who commit them and abet them. They are crimes against humanity. ... While I was in the DRC, I had very frank discussions about sexual violence with President Kabila. I stressed that the perpetrators of these crimes, no matter who they are, must be prosecuted and punished. This is particularly important when they are in positions of authority, including members of the Congolese military, who have been allowed to commit these crimes with impunity."

- Clinton, August 21, 2009.



Worldwide: “[W]e call on all parties and all governments to live up to their commitments under international humanitarian law, abide by all Security Council resolutions, and cooperate with international investigations to end impunity for war crimes and crimes against humanity.”

– Rice, January 29, 2009.



But not in Gaza.

“[I]n this, as in many other respects, the US focus, and I think constructively the focus of many other countries, is to try to look not to the past but to the future. The best way to end suffering and abuses is for there to be a long term solution and peace based on two states living side by side in peace and security.” 

– Rice, September 22, 2009.


The US insists that Israel can investigate itself…

“The United States understands that Israel is a vibrant and strong democracy and it has more than sufficient capacity to conduct a credible internal investigation and we’ve encouraged it to do so.”
– Rice, September 22, 2009.

“We are confident that Israel, as a democracy with a well-established commitment to rule of law, has the institutions and ability to carry out robust investigations into these allegations. We note that Israel has stated publicly it has already investigated at least 100 complaints related to the Gaza conflict, including about some incidents mentioned in the report, and is currently pursuing action in 23 individual cases. The findings from each of its investigations [are] subject to multiple independent layers of review. We encourage Israel to utilize appropriate domestic review procedures and meaningful accountability mechanisms to investigate and address all credible allegations of misconduct or violations of international law.”
– US Assistant Secretary of State Michael Posner, September 29, 2009.


Even though Israel has never really tried. 

While Israel is capable of carrying out the impartial investigations called for in the Goldstone report, the record on the recent Gaza conflict and over the past decade indicates a consistent lack of political will to hold its forces accountable for serious violations of international human rights and humanitarian law.

While Israeli authorities say that they have initiated roughly 100 investigations into Operation Cast Lead, the majority (about 60) are in fact only operational debriefings “held by the army, in the army” under the Military Justice Law. These debriefings are typically conducted within the chain of command by officers from the same unit as the soldiers whose actions are being evaluated. No witnesses outside the military are interviewed, and there is no mechanism to verify the soldiers’ accounts. The operational debriefing requirement delays a proper impartial criminal investigation, and can actually undermine such an investigation because the information provided cannot be released or used as evidence in a court of law. Operational debriefings do not investigate the orders given to the unit; the point of the debriefing is to determine how those orders were carried out. The lawfulness or unlawfulness of the orders given to the unit is beyond its scope.

Five unique “field investigations” (covering some 20 cases) were conducted by Israeli colonels outside the chain of command, but the relatively low rank of the officers responsible for these investigations calls into question their independence, as do their uniform conclusions that the operations of the Israel Defense Forces (IDF) in Gaza were lawful. In the remaining 23 cases, criminal investigations have been opened.

Despite all three levels of investigations, Israel is known to have interviewed only 11 Palestinian witnesses to any of the alleged crimes committed in Gaza more than eight months ago, and convicted only one soldier, sentencing him to seven months in prison for the theft of a credit card.

Prior practice also raises substantial doubt as to whether any of these investigations will result in indictments or prosecution. From 2000 to 2008, according to Yesh Din (an Israeli human rights organization), Israeli soldiers in the Occupied Palestinian Territories killed more than 2,000 Palestinian civilians not involved in combat. Of 1,246 criminal investigations initiated during the same period into suspected offenses of all kinds by soldiers against Palestinian civilians, only 6 percent (78 cases) resulted in indictments. Only 13 of those indictments charged soldiers with killing civilians. As of September 2008, five soldiers had been convicted for the deaths of four civilians.

Most of these criminal investigations have been badly flawed for reasons that are deeply ingrained within Israel’s military justice system. Investigations are often initiated many months (at times more than a year) from the time of the incident, making it difficult to find evidence or identify witnesses and victims. The unit responsible for investigations has very few of the Arabic speakers needed to take testimonies from witnesses. In 2002, the Knesset passed a law denying Palestinians the possibility of obtaining compensation in most cases in which they have suffered injury as a result of illegal acts by Israeli security forces. 


The US claims Goldstone’s report shows a lack of “balance”…

“[T]he weight of the report is something like 85 percent oriented towards very specific and harsh condemnation and conclusions related to Israel and very sort of lightly treats without great specificity Hamas’ terrorism and its own atrocities. So in that respect it remains unbalanced, although obviously less so than it might have been and so that is still a source of significant concern.”
– Rice, September 22, 2009.



“The report further calls on Israel to undertake a moratorium on the use of certain munitions; it makes no such demand of Hamas with regard to its use of indiscriminate rockets. These unbalanced recommendations taint many of the report’s suggestions for international action.”
– Posner, September 29, 2009.

Even though the report’s conclusions are hard-hitting on both sides: 

The section of the report dealing with violations by Israeli forces during the Gaza war is significantly longer than the report’s sections addressing abuses by Hamas and the Palestinian Authority. But the fact that the Goldstone report addresses Hamas’s one-dimensional assault on Israel through use of rockets in fewer pages than it took to discuss Israel’s multifaceted 22-day military operation is hardly surprising. And the conclusions Goldstone reaches regarding Hamas are as hard-hitting as those addressed to Israel:

“[T]hese attacks constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population.  These acts would constitute war crimes and may amount to crimes against humanity. Given the seeming inability of the Palestinian armed groups to direct the rockets and mortars towards specific targets and given the fact that the attacks have caused very little damage to Israeli military assets, the Mission finds that there is significant evidence to suggest that one of the primary purposes of the rocket and mortar attacks is to spread terror amongst the Israeli civilian population, a violation of international law.”

Attacking the report as unbalanced because of its language on weapons moratoriums turns Goldstone’s conclusions on their head. The moratorium language regarding Israel’s use of certain weapons (white phosphorus, flechettes, and heavy metals such as tungsten) reflects that Goldstone recognizes, as the US stresses, that Israel is a state with the right to self-defense, and that military action may be undertaken to defend itself. In contrast, it labels Hamas’s use of rockets and mortars a war crime (and possibly a crime against humanity), a clear finding of wrongdoing much stronger than simply calling for a moratorium on their use. 


The US claims Goldstone’s mandate was biased…

“But the fundamental problem with this particular report is it was hatched with a bias inherent in its mandate. It is as a consequence a product that largely reflects that imbalance in its mandate, notwithstanding the effort to look at the other side to some extent, albeit a lesser extent.”
– Rice, September 22, 2009.



Even though the mandate covered both sides. 

While the original mandate for the mission focused only on Israel, that one-sided approach was corrected by the Human Rights Council president, Nigerian Ambassador Martin Uhomoibhi, who broadened the inquiry to look at all violations in the Gaza conflict committed by any of the parties. It was only after this change was made that Goldstone accepted the role as head of the mission, which indicates his insistence on a fair and unbiased approach.



The US implemented strategies emphasizing civilian protection in Iraq and Afghanistan…

“Civilian casualties (CIVCAS) and damage to public and private property (collateral damage), no matter how they are caused, undermine support for [US and coalition forces] and the international community in the eyes of the Afghan population. Although the majority of CIVCAS incidents are caused by insurgents, the Afghan people hold [US and coalition forces] to a higher standard. Strict comparisons of amount of damage caused by either side are unhelpful. To protect the population from harm, [US and coalition forces] must take every practical precaution to avoid CIVCAS and collateral damage.”
– Gen. Stanley McChrystal’s report on the war in Afghanistan, September 2009.



“Civilian casualties in Afghanistan are “one of our greatest strategic vulnerabilities. … Every civilian casualty, however caused, is a defeat for us and a setback for the Afghan government.”

– Secretary of Defense Robert Gates, June 12, 2009.

But fails to hold Israel to the same standards.

“National militaries engaged in asymmetrical warfare must remain bound by humanitarian law, but it is a stark and tragic reality that terrorists systematically ignore these laws. Actions by terrorist groups that have the effect of employing civilians as human shields put enormous pressures on militaries that are trying to protect civilians and their own soldiers, an issue faced by many militaries today. Although the Goldstone report deals briefly with these issues, its findings of fact and law are tentative and equivocating.” 

– Posner, September 29, 2009.