April 8, 2010

A Mandate of Their Making

Frederico Ferreira

 Why the Goldstone report sets an unfortunate precedent

On April 3, 2009, the United Nations Human Rights Council (UNHRC) established the United Nations Fact Finding Mission on the Gaza Conflict and asked South African Judge Richard Goldstone to head the investigation. The mission’s controversial 575-page report was released on September 15, 2009. The Goldstone Report, or officially Report of the United Nations Fact Finding Mission on the Gaza Conflict, was approved by the UNHRC, where twenty-five member nations voted in favor of the resolution endorsing it, six voted against endorsement while another eleven remained impartial. It recommended the sides openly investigate their own conduct and, should they fail to do so, that the allegations be brought to the International Criminal Court . The Israeli government rejected the report as prejudiced and full of errors. The militant Islamic group Hamas, which governs the Gaza Strip, initially rejected the report's findings, but then urged world powers to embrace it. The report has played a key role in the effort to target Israel in boycott movements and more broadly to set legal precedents as the diplomatic conflict unfolds.

From the beginning, observers raised serious questions about the investigation’s mandate, which was changed before the establishment of the mission. From the moment its mandate was defined and until today, the mission has stirred controversy among different NGOs and governments on all sides of the dispute. The repercussions reverberated in the policy community. Illustrating the sharply divided interpretation of the report, two similar looking but ideologically opposite websites were set up, with a website providing generally favorable accounts of the report and its process, but without any information on its founders, and another one that provides more critical accounts of the process and content set up by NGO Monitor and other organizations known to work on anti-Israeli bias.

Resolution A/HRC/S-9/L.1 authorizing the investigation originated in the Human Rights Council was drafted by Cuba, Egypt (on behalf of the Arab and African Groups) and Pakistan (on behalf of the Organization of the Islamic Conference). It defined the mandate for the mission as to “report on the violations of human rights of the Palestinian people by the occupying Power, Israel…”. The original mandate is one-sided and focused on the Israeli actions against the Palestinian people; it only once mentions the rockets fired upon Israeli civilians, the incident which precipitated the military action, whereas it cites extensively the damage suffered by the Palestinians. The wording took little account of the aggressive action that sparked the conflict and built an impression that the damage suffered by the Palestinians was unprovoked and more extensive than the suffering by Israelis.

U.S. Congress debated the Goldstone report in November 2009. The U.S. House of Representatives passed a non-binding resolution characterizing it as “irredeemably biased and unworthy of further consideration or legitimacy.” It voted 344-36 to urge the President and the Secretary of State to “oppose unequivocally any endorsement or further consideration” of its recommendations. The members were concerned as much about the process of how the report was prepared as its conclusions. They expressed concern that the process was deeply flawed and biased. Among many concerns, they pointed out that prior to launching the investigation members of the UN investigatory team had declared Israel to be guilty of committing atrocities.

There was also apprehension that the mission changed the original mandate approved by the entire Council. The original resolution reads the mission was established “to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.” The Council President and the Head of the Mission, without the expressed consent of the Council, decided that the mandate was to be changed “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.” The expansion of the mandate to include possible Palestinian violations was not approved by the Human Rights Council as a whole.

According to the website of the Human Rights Council , any modifications in any document issued by the Council is supposed to follow the rules of procedure of the United Nations General Assembly, which requires changes only through amendments. As the U.S. House Resolution noted,  “Whereas a so-called broadened mandate was never officially endorsed by a plenary meeting of the UNHRC, neither in the form proposed by Justice Goldstone nor in the form proposed by Ambassador Uhumoibhi [President of the HRC at the time]”. Circumventing established procedures cast a shadow over the process at the Human Rights Council, as it set a dangerous precedent that the decisions of the Council can be modified by international bureaucrats independent of oversight.

The lack of adherence to the mandate approved combined with the non-official process to change it by the executor of mandate created doubts about the integrity of the discussions and decisions of the Council. When the original mandate was first issued, it was criticized as being anti-Israeli. The enhancement of the mandate to include investigations of Palestinian actions has been characterized by some as a gimmick to deflect criticism over the mandate and the entire process. The fact that possible Palestinian violations were included in the modified mandate but were not vigorously investigated (according to critics) reinforces the concerns that the process was less than fair. Even if one agrees that the expanded mandate was, in theory, better than the original, the circumvention of the process is not acceptable. If international officials ignore established protocols and start to modify rules at their discretion, there will be unavoidable suspicion that they will advance their own agenda instead of the mandate they are chosen to follow. This could contribute to the further erosion in the belief of the traditional neutrality among international servants.