By Hillel NeuerIn tonight’s Brandeis University debate with former Israeli ambassador Dore Gold, Judge Richard Goldstone, author of the UN report on Gaza that bears his name, conceded that, had his UN inquiry been considered “judicial,” the prior statement of his colleague Christine Chinkin concerning Israel would have been sufficiently problematic as to disqualify her.
Recall that in a joint statement published on January 11, 2009 in the Letters section of London’s Sunday Times, entitled “Israel’s Bombardment of Gaza is Not Self-Defense — It’s a War Crime,” Chinkin declared that Israel was guilty of committing acts during Operation Cast Lead that were “contrary to international humanitarian and human rights law,” and of committing “prima facie war crimes.”
Goldstone’s concession on this point echoes what he told South Africa’s Business Day in an August 2nd interview: “If it had been a judicial inquiry, that letter she’d signed would have been a ground for disqualification.”
However, in the same breath as he effectively admitted the obvious—that her impartiality was irreparably compromised—Goldstone contradicted himself by defending Chinkin’s letter as being entirely irrelevant.
First, argued Goldstone, her letter was signed also by a number of eminent international law scholars.
Second, as he argued to Congress in his failed attempt to block this week’s House denunciation of the Goldstone Report, he said that Chinkin’s letter only dealt with the “technical” issue of whether Israel enjoyed the right to self-defense under international law, and not with the specific issues bearing on the inquiry.
Third, argued Goldstone tonight, Chinkin also condemned Hamas.
All of these arguments he has made before, several of which are documented in our legal brief. (See more at unwatch.org/goldstone.) Yet each is specious, misleading and without any basis in law. I believe that the jurist Goldstone knows this full well, but apparently believes that the ends (his desire to save Israel from itself) justify the means (accepting a biased colleague on his inquiry panel, just as he accepted to work under the UN Human Rights Council’s biased S/9-1 mandate that was never changed as a matter of law).
First, what probative value the existence of co-signatories has on Chinkin’s real or apparent bias is beyond me. But it is worthy of note that among the signatories so respected by Goldstone is one Richard Falk, the UN Human Rights Council’s permanent investigator of alleged Israeli violations, a man who has repeatedly accused the United States government of being behind the 9/11 terrorist attacks.
Second, putting aside that the issue of whether Israel enjoys the legal right of self-defense is hardly “technical,” Chinkin’s remarks bear directly on the subject matter of the inquiry. Even had Chinkin only limited herself to accusing Israel of “aggression,” without opining at all as to the manner in which Israel conducted the war, this would have been clearly sufficient to create the appearance of bias on any matter related to Israel and the war.
But it’s worse: contrary to what she insisted during a May briefing with Geneva NGOs, and contrary to what Goldstone keeps saying, Chinkin’s letter also stated on the record—prior to her seeing any evidence—that Israel was guilty of committing acts during Operation Cast Lead that were “contrary to international humanitarian and human rights law,” and of committing “prima facie war crimes.”
That means she spoke on both jus ad bellum (whether the war was just) as well as jus in bello (how it was conducted). That Goldstone keeps getting away with saying she only addressed the former is testament to the culture of impunity that has surrounded this mission from its inception. (And, it is again important to note, even her comments on the former amounted to a sufficient disqualifier.)
Finally, about Chinkin’s supposed criticism of Hamas, which we are supposed to believe makes the letter either irrelevant, or somehow Kosher. Our legal brief from this summer, summarily dismissed by Goldstone, anticipated the specious argument that the letter’s single-line lip service on Hamas sanitizes her preemptive guilty verdict against Israel. We wrote:
The end of the statement includes one passing sentence on Hamas crimes, immediately followed by the qualifier that Israel’s “operations in Gaza amount to an aggression and is contrary to international law, notwithstanding the rocket attacks by Hamas.” No reasonable person could read the statement without concluding — as the Sunday Times headline writer did — that the crux of Prof. Chinkin’s joint statement was that “Israel’s bombardment of Gaza is not self-defense, it’s a war crime.”
In note 5 of the legal brief we added:
Some will no doubt seize upon this one sentence to exculpate Prof. Chinkin. This is to no avail. First, no reasonable person can read her statement in its entirety and deny that its central thesis is that Israel is an aggressor and war criminal. Second, even if the one sentence on Hamas were to be given weight, the gross abuse of due process arising from Prof. Chinkin’s commitment to a preconceived outcome regarding individuals on one side of the conflict — her absence of an open mind on the question put before the Mission — is hardly assuaged by an additional prior determination regarding individuals from the other side.
I salute the Brandeis student who raised the Chinkin matter tonight with Goldstone. While it was good of her to use our legal brief’s argument invoking the 2004 Sesay precedent, where an international war crimes judge had to step down due to remarks related to some of the parties, it also gave Goldstone a chance to access one of his previously-used escape routes. That precedent from the Sierra Leone tribunal, said Goldstone, dealt with a judicial panel, whereas his was something distinct.
But this is a distinction without a difference. Our arguments never relied on the Sesay precedent. Rather, we showed that international fact-finding missions (and not only judicial tribunals) are subject to the fundamental obligation of impartiality. In fairness, the Brandeis student did also remind Goldstone of his promise that the mission would be impartial, but he ignored this.
And so the question for Goldstone comes back to this: Was your fact-finding mission subject to the legal standards applicable to international human rights fact-finding missions? If so, given that impartiality is Rule #1 under those standards, and given that you concede that “[the] letter she’d signed would have been a ground for disqualification” in a judicial context, what is it about your own inquiry that renders Chinkin’s impartiality deficit suddenly acceptable?
Goldstone has consistently evaded any accountability under the law applicable to international fact-finding missions, by repeatedly declaring that his panel was “not judicial.”
But this is a red herring. The simple truth is that his fact-finding mission was legally subject to a well-established set of standards. Sadly, however, these were ignored.
(Source: UN Watch blog, http://blog.unwatch.org/?p=514.)