¹ Philip Alston has noted that, “[o]ver the past decade, international monitoring has become almost a standard recommendation by human rights groups.” Philip Alston & William Abresch, Can Human Rights Monitoring Halt Abuses in Sri Lanka?, 31 World, Fletcher F. Aff. 21, 22 (2007).Google Scholar

² U.N. Secretary-General, The Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. Doc. S/1994/674 (May 27, 1994).Google Scholar

³ U.N. Secretary-General, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, U.N. SCOR, U.N. Doc. S/1999/1257 (Dec. 15, 1999).Google Scholar

⁴ Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, U.N. Doc. S/RES/1564 (Jan. 25, 2005).Google Scholar

⁵ U.N. GAOR, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48 (Sept. 25, 2009) [hereinafter Goldstone Report]; See also U.N. Hum. Rts. Council, Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1, U.N. Doc. A/HRC/29/CRP.4 (June 24, 2015) [hereinafter Gaza 2015 Inquiry].Google Scholar

⁶ U.N. Office of the High Commissioner, Human Rights Council, Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1992 and June 2003 (Aug. 2010) [hereinafter DRC Mapping Exercise]; Report of the International Commission of Inquiry Mandated to Establish the Facts and Circumstances of the Events of 28 September 2009 in Guinea, U.N. Doc. S/2009/693 (Dec. 18, 2009) [hereinafter Guinea COI]; Report of the independent international commission of inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/S-17/2/Add.1 (Nov. 23, 2011), http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/17/docs/A-HRC-S-17-2-Add1.pdf [hereinafter Syria COI].Google Scholar

⁷ See, e.g., Halink, Simone, All Things Considered: How the International Court of Justice Delegated its Fact-Assessment to the United Nations in the Armed Activities Case, 40 N.Y.U. J. Int'l L. & Pol. 13 (2008); see also Teitelbaum, Ruth, Recent Fact-Finding Developments at the International Court of Justice, 6 Law & Prac. Int'l Cts. & Tribunals 119 (2007); Rassi, Christopher M., Lessons Learned from the Iraqi High Tribunal: The Need for an International Independent Investigation, 39 Case W. Res. J. Int'l L. 215 (2006). The reports of UN fact-finding missions, COIs, and of truth commissions have been used extensively as of late in both international court and tribunal decisions. See Michael P Scharf, The Case for a Permanent International Truth Commission, 7 Duke J. Comp. & Int'l L. 375, 380 (1997). See also Case, Velasquez Rodriquez, Judgment of July 29, 1988, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988); Anguelova v. Bulgaria, App. No. 38361/97, 2002-IV Eur. Ct. H.R. (2002). See generally May, Richard & Wierda, Marieke, International Criminal Evidence 345 (2003); M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int'l L. 784 (1994).Google Scholar

⁸ Given the inability of most states to conduct independent fact-finding missions, such decisions will invariably be based at least in part on the reports of other organizations, foremost among them UN reports. See generally Halink, supra note 7, at 26–27. Halink notes that the International Court of Justice has “attribute[d] greater weight to UN materials than to other secondary evidence such as NGO reports and press statements,” and “virtually conclusive,” as compared to the evidence offered by both Parties.Google Scholar

⁹ For a call for greater study of UN COIs, see M. Cherif Bassiouni, Appraising UN Justice-Related Fact-Finding Missions, 5 Wash. U. J. L. & Pol'y 35, 41 (2001). As an example of an author who has started to do some of this work, though has tended to evaluate COIs from a purely practical rather than legal perspective, see generally Theo Boutruche, Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice, 16 J. Conflict & Security Stud. 1 (2011). Boutruche also maintains a blog on the topic; see generally Theo Boutruche, The Art of Facts: A Legal Blog and Fact-Finding and Armed Conflict, www.theartoffacts.org. By contrast, a good example is the extensive legal review that truth commissions have received. See, e.g., Freeman, Mark, Truth Commissions and Procedural Fairness (2006); Priscilla Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (2002).Google Scholar

¹⁰ See, e.g., Bell, Abraham, A Critique of the Goldstone Report and Its Treatment of International Humanitarian Law (Mar. 30, 2010) available at http://ssrn.com/abstract=1581533. For a good example of this dynamic in the context of the Gaza COI, see Horowitz, Adam, Lizzy Ratner, & Philip Weiss, The Goldstone Report: The Legacy of the Landmark Investigation of the Gaza Conflict (2011).Google Scholar

¹¹ Goldstone Report, supra note 5.Google Scholar

¹² See sources, supra notes 2–6.Google Scholar

¹³ This would include, inter alia: promoting accountability for criminal wrongs; providing recommendations on institutional and legal reforms and/or reparations programs; providing an historical narrative of the conflict upon which to build a shared collective memory or “truth” about the past; and, offering a forum for witnesses to air their grievances, express their views and wishes and discuss their experiences.Google Scholar

¹⁴ Looking at past UN COIs, one can see that UN they have been generally and consistently been criticized by academic and non-academic commentators alike with regard to: their biased mandates (partiality); the clarity of their mandate and purpose (transparency and consistency/clarity); a disproportionate focus on a particular country, region or conflict (a lack of representative participation, partiality); the selection of biased commissioners (partiality and independence); inflammatory language used in reports (partiality) and shifting standards of proof (transparency of rules and operating procedures); a misguided or biased review of the facts (partiality); the lack of clarity in or promulgation of their rules and methods of operation (transparency); the quality of their evidence used to indict and the quality, quantity and use of corroborating evidence (fairness, partiality, transparency of processes and rules of evidence); and, their approach to balancing interests in protecting witnesses while also providing full and prompt disclosure of legal findings to individuals and/or states concerned.Google Scholar

¹⁵ For but a small example, see Bell and Horowitz, et. al., supra note 10.Google Scholar

¹⁶ Gaza 2015 Inquiry, supra note 5.Google Scholar

¹⁷ For an accessible though lengthy review of the context and conflict, see Tessler, Mark, A History of the Israeli-Palestinian Conflict (2009).Google Scholar

¹⁸ For an article arguing why Israel did not have to “break the truce” and intervene militarily in order to protect its civilian population, see Stiegman, Henry, Discrediting Goldstone, Delegitimizing Israel, in The Goldstone Report: The Legacy of the landmark Investigation of the Gaza Conflict 390 (Horowitz, Ratner, & Weiss, eds. 2011). Stiegman asserts:Google Scholar

[Hamas] offered to extend the truce, but on condition that Israel end its blockade. Israel refused. It could have met its obligation to protect its citizens by agreeing to ease the blockade, but it didn't even try. It cannot be said, therefore, that Israel launched its assault to protect its citizens from rockets. It did so to protect the continuation of its strangulation of Gaza's population.Google Scholar

For an explanation of Israel's reasons for the intervention, see Rory McCarthy, Our goals are near, says Israeli PM as Gaza fighting intensifies, The Guardian (Jan. 11, 2009); Rory McCarthy, Israel criticized after “shocking” discovery of exhausted children, The Guardian (Jan. 8, 2009); and Clancy Chassay, Cut to pieces: The Palestinian family drinking tea in their courtyard, The Guardian (Mar. 23, 2009). The Guardian subsequently maintained an online section devoted to its investigations of claims of abuse and criminality—see the Guardian's “war crimes investigation” page online: http://www.guardian.co.uk/world/series/gaza-war-crimes-investigation.Google Scholar

¹⁹ See, e.g., Rockets from Gaza: Harm to Civilians from Palestinian Armed Groups' Rocket Attacks, Human Rights Watch (Aug. 6, 2009) www.hrw.org/en/reports/2009/08/06/rockets-gaza-0.Google Scholar

²⁰ Azmi Keshawi, Martin Fletcher, & Sheera Frenkel, Gaza's tunnels, traps and martyrs: the Hamas strategy to defeat Israel, The Times (Jan. 12, 2009). Political violence was also seen as prevalent with respect to Hamas. See generally Under Cover of War: Hamas Political Violence in Gaza, Human Rights Watch (Apr. 19, 2009), https://www.hrw.org/sites/default/files/reports/iopt0409webwcover.pdf.Google Scholar

²¹ Rain of Fire: Israel's Unlawful Use of White Phosphorus in Gaza, Human Rights Watch ch. IV (Mar. 25, 2009).Google Scholar

²² For an overview of the issue, see White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead, Human Rights Watch (Aug. 13, 2009).Google Scholar

²³ Clancy Chassay & Julian Border, Guardian Investigation Uncovers Evidence of Alleged Israeli War Crimes in Gaza, The Guardian (Mar. 24, 2009), www.guardian.co.uk/world/2009/mar/23/israelgaza-war-crimes-guardian/.Google Scholar

²⁴ Id.Google Scholar

²⁵ See generally Rain of Fire, supra note 21.Google Scholar

²⁶ For an example of an article offering such criticism, see McCarthy, Our goals are near, supra note 18.Google Scholar

²⁷ For example, Israel denied the use of white phosphorus in inhabited areas and the bombing of the UN school, while Hamas denied the use of human shields.Google Scholar

²⁸ Goldstone Report, supra note 5, at 37 ¶ 131.Google Scholar

²⁹ Human Rights Council Res. S-9/1, 9^th U.N. Doc. A/HRC/S-9/L.1 (Jan. 9, 2009). [Emphasis added.]Google Scholar

³⁰ See Letter of Ambassador Aharon Leshno-Yaar, Permanent Representative of Israel to the U.N. Human Rights Council (July 6, 2009) in Goldstone Report, supra note 5 [hereinafter Letter of Ambassador Aharon Leshno-Yaar].Google Scholar

³¹ Israel Ministry of Foreign Affairs, Initial Response to Report of the Fact Finding Mission on Gaza Established Pursuant to Resolution S-9/1 of the Human Rights Council 3–4, ¶¶ 10–13 (Sept. 24, 2009) [hereinafter Initial Israeli Response to Gaza COI].Google Scholar

³² See, e.g., Human Rights Council Res. S-21/1, U.N. Doc. A/HRC/RES/S-21/1 ¶ 2 (July 24, 2014) [hereinafter Res. S-21/1]: Condemns in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations“ which have involved disproportionate and indiscriminate attacks, including aerial bombardment of civilian areas, the targeting of civilians and civilian properties in collective punishment contrary to international law ….Google Scholar

The Resolution does also condemn the killing of two Israeli civilians though the language is much more limited and, in any event, presupposing conclusions on both sides hardly vitiates bias.Google Scholar

³³ See, e.g., Human Rights Council, U.N. Doc. A/HRC/3/2 (Nov. 23, 2006). Resolution S-2/1, which gave the COI its mandate, was entitled, The grave situation of human rights in Lebanon caused by Israeli military operations. In addition to pre-determining causation, Resolution S-2/1 predetermined the COI's outcome by, “[c]ondemning Israeli military operations in Lebanon, which constitute gross and systematic human rights violations of the Lebanese people”. See Res. S-2/1, supra note 32, at For, Annex I. another recent example of a U.N. HRC COI dealing with Israel, see The Human Rights Inquiry Commission to Investigate Violations of Human Rights and Humanitarian Law in the Occupied Palestinian Territories after 28 September 2000, U.N. Doc. E/CN.4/2001/121 (Mar. 16, 2001), established pursuant to Commission on Human Rights Res. S-5/1, (Oct. 19, 2000), later endorsed by the Economic and Social Council decision 2000/311 (Nov. 22, 2000). See also Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/10 on Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory, U.N. Doc. A/ES-10/L14 (Aug. 1, 2002). After issuing his report, Goldstone himself stated: “I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of even-handedness at the UN Human Rights Council, whose history of bias against Israel cannot be doubted.” Richard Goldstone, Reconsidering the Goldstone Report on Israel and War Crimes, Washington Post (Apr. 2, 2011) [hereinafter Goldstone Recantation].Google Scholar

³⁴ As but one commentator stated: Many UN reports, “were not in general dressed up in the restrained language of traditional diplomacy, and the reader cannot feel confident that a complete and balanced picture has been presented.” See Bailey, Sydney D., UN Fact-Finding and Human Rights Complaints 48 Int'l. Aff. 250, 258 (1972).Google Scholar

³⁵ Res. S-21/1, supra note 32, at ¶ 13. At least in this case the decisive paragraph (13), the Resolution is neutral as to whom the COI should focus on and whom is guilty, though it does presuppose that there were “crimes perpetrated.”Google Scholar

³⁶ The open letter was published in newspapers and on Amnesty International's website in March 2009. See Gaza Investigators Call for War Crimes Inquiry, Amnesty International (Mar. 16, 2009). Those signing the letter included Justice Goldstone, Hina Jilani, Desmond Travers—each of the eventual COI—as well as notables such as Alex Boraine, Archbishop Desmond Tutu, Mary Robinson, William A Schabas, and Antonio Cassese.Google Scholar

³⁷ Id. Google Scholar

³⁸ In Letter of Justice Goldstone to the Israeli Permanent Representative to the U.N. Human Rights Council, Ambassador Aharon Leshno-Yaar (Apr. 8, 2009) [hereinafter Goldstone Letter to Israeli Ambassador] at Annex II to the Goldstone Report, supra note 5, Goldstone stated: I wished personally to assure you that prior to considering the invitation to lead the Mission, I satisfied myself that it would be given unbiased and even-handed terms of reference. In particular, it seemed to me that it was crucial, in order to assess the military actions conducted by Israel, and in particular to investigate the effects on Israeli citizens of the rocket attacks that emanated from Gaza …. As a completely independent body, the Mission will now be determining its own terms of reference. I would hope that I could consult with the Government of Israel and take into account its views with regard to the terms of reference. Your advice in this regard would be much appreciated. [Emphasis added.]Google Scholar

³⁹ Goldstone Report, supra note 5, ¶ 1, at 13. See also Goldstone Letter to Israeli Ambassador, supra note 38, where Goldstone reiterated his intention to proceed “independently and impartially.” [Emphasis added.]Google Scholar

⁴⁰ Goldstone Report, supra note 5, ¶ 5, at 13.Google Scholar

⁴¹ Id. ¶ 134, at 37. To give a sense for how short a timeframe this is, contrast to the two to three years that many truth commissions are given to investigate and report, or even longer for an international court to prosecute but one case.Google Scholar

⁴² Goldstone Report, supra note 5, ¶ 3, at 3.Google Scholar

⁴³ Id.Google Scholar

⁴⁴ Id. ¶ 30, at 17.Google Scholar

⁴⁵ Id. Google Scholar

⁴⁶ Id. ¶¶ 30–31, at 17.Google Scholar

⁴⁷ Goldstone Report, supra note 5, at 413–19.Google Scholar

⁴⁸ As is evident, these core incidents related primarily to allegations of indiscriminate or disproportionate Israeli attacks on civilians. However, there are certainly other claims made, including in relation to the repression of dissent in Israel (Goldstone Report, supra note 5, ch. XXV) and abusive detentions (Goldstone Report, supra note 5, at ch. XIV, XV and XXI).Google Scholar

⁴⁹ Goldstone Report, supra note 5, at 419–22.Google Scholar

⁵⁰ Press Release, United Nations, Human Rights Council Endorses Recommendations in Report of Fact-Finding Mission Led by Justice Goldstone and Calls for their Implementation (Oct. 16, 2009). See also Human Rights Council Res. A/HRC/S-12/L.1 (Oct. 14, 2009). This endorsement took place after some significant procedural and political wrangling. The resolution to endorse the Goldstone Report was initially delayed on 2 October 2009 when the Palestinian delegation dropped its support for the Goldstone Report, purportedly under heavy political from, inter alia, the United States. See Rory McCarthy, UN Delays Action on Gaza War Report, The Guardian (Oct. 2, 2009). However, on 11 October 2009, President of the Palestinian Authority, Mahmoud Abbas, called on the Human Rights Council to hold a special session to debate the Goldstone Report, which was then held on 15 November 2009.Google Scholar

⁵¹ See Human Rights Council Res. A/HRC/RES/S-12/L.1, id. Emphasis in original.Google Scholar

⁵² The final vote was 25 in favor, 5 opposed, with 11 abstentions. Five nations also declined to vote by being absent, including the United Kingdom and France. Id. Google Scholar

⁵³ See Release, Press, General Assembly, By Recorded Vote, General Assembly Urges Israel, Palestinians to Conduct Credible, Independent Investigations into Alleged War Crimes in Gaza, U.N. Press Release GA/10883 (Nov. 5, 2009) [hereinafter Press Release GA/10883]; see also American Society of International Law, International Law in Brief, United Nations General Assembly Resolution on the 2008 Gaza Conflict“ (Nov. 14 2009). The Resolution was adopted by a recorded vote of 114 in favor, 18 against, and 44 abstentions. Notable votes against the resolution included Australia, Canada, Germany, Israel, Italy, Netherlands, and the United States. Many European Union countries abstained.Google Scholar

⁵⁴ The majority of supporters of the resolution were “developing” countries. Canada's speaker “said his delegation had voted against the resolution because it was concerned about the imbalanced nature of the Goldstone Report ….” In addition to Canada, Australia, the Czech Republic, Germany Hungary, Israel, Italy, the Netherlands, Poland, Slovakia, and the United States, among others, voted against the resolutions. Notable abstentions included Denmark, Austria, Japan, New Zealand, Norway, Republic of Korea, Russian Federation, Spain, Sweden and the United Kingdom. See G.A. Res. 64/254, (Feb. 26, 2010) (requesting an update on the steps taken to implement the Goldstone Report).Google Scholar

⁵⁵ Id. Google Scholar

⁵⁶ Sharon Otterman, UN Rights Official Backs Gaza Report, New York Times (Oct. 16, 2009).Google Scholar

⁵⁷ Allies Push Israel for Gaza Probe, BBC News (Oct. 15, 2009), http://news.bbc.co.uk/2/hi/middle_east/8308367.stm.Google Scholar

⁵⁸ One critique generally viewed as particularly thoughtful was Moshe Halbertal, The Goldstone Illusion: What the UN report gets wrong about Gaza—and War, The New Republic (Nov. 6, 2009), www.tnr.com/print/article/world/the-goldstone-illusion [hereinafter Halbertal, The Goldstone Illusion]. Alan Dershowitz, a persistent critic of the Human Rights Council and those who criticize Israel, stated that the Goldstone Report:Google Scholar

is much worse than most of its detractors (and supporters) believe. It is far more accusatory of Israel, far less balanced in its criticism of Hamas, far less honest in its evaluation of the evidence, far less responsible in drawing its conclusions, far more biased against Israeli than Palestinian witnesses, and far more willing to draw adverse inferences of intentionality from Israeli conduct and statements than from comparable Palestinian conduct and statements.Google Scholar

See Dershowitz, Alan, The Case Against the Goldstone Report: A Study in Evidentiary Bias, Harvard Public Law Working Paper No. 10-26, at 1, available at http://ssrn.com/abstract=1542897.Google Scholar

⁵⁹ Amnesty International supported the Goldstone Report's findings and argued that the UN should ensure that its recommendations are implemented because they offered, “the best hope for justice and accountability.” See UN Must Ensure Goldstone Inquiry Recommendations are Implemented, Amnesty International (Sept. 15, 2009). Amnesty International further noted that, “[t]he report's findings are consistent with those of Amnesty International's own field investigation into the 22-day conflict ….” Id. Google Scholar

⁶⁰ Human Rights Watch noted that the Goldstone Report's findings “closely correspond[ed]” to its findings and those of “other independent groups [NGOs].” See UN: US, EU Undermine Justice for Gaza Conflict: Goldstone Report Offers Chance to End Impunity, Human Rights Watch (Sept. 30, 2009), www.hrw.org/en/news/2009/09/30/un-us-eu-undermine-justice-gaza-conflict?. See also Letter to Prime Minister Haniya, Human Rights Watch (Oct. 20, 2009), www.hrw.org/en/news/2009/10/20/letter-prime-minister-haniya?print; Letter to Ban Ki-moon on the General Assembly Resolution of Post-fact Finding Investigations in Gaza, Human Rights Watch (Nov. 23, 2009), www.hrw.org/en/news/2009/11/23/letter-ban-ki-moon-general-assembly-resolution-post-fact-finding-investigations-gaza?; Israel/Gaza: Implement Goldstone Recommendations on Gaza, Human Rights Watch (Sept. 16, 2009), http://www.hrw.org/en/news/2009/09/16/israelgaza-implement-goldstone-recommendations-gaza.Google Scholar

⁶¹ H.R. Res. 867, 111th Cong. (2009) [hereinafter H.R. Res. 867].Google Scholar

⁶² The United States Department of State officially condemned the Goldstone Report as “deeply flawed” and disagreed with both its methodology and many of its recommendations. Statement by Michael Posner, UN Assistant Secretary of State for Democracy, U.S. State Dep't (Sept. 2009), http://geneva.usmission.gov/2009/09/29/gaza-conflict [Posner State Department Response]. See also U.S. State Dep't, 2009 Human Rights Report: Israel and the Occupied Territories (Mar. 11, 2010), www.state.gov/g/drl/rls/hrrpt/2009/nea/136070.htm.Google Scholar

⁶³ Despite being divided, with many European Union (EU) countries voting against the UN General Assembly and Human Rights Council resolutions on the Goldstone Report, outside the UN context the EU parliament nevertheless offered its (non-binding) endorsement of the Goldstone Report by majority vote. See Phillips, Leigh, Despite Heavy Lobbying, EU Parliament Endorses Goldstone Report, EU Observer (Mar. 10, 2010), http://euobserver.com/24/29650?pring=1. The vote in the parliament was 335–287.Google Scholar

⁶⁴ Letter of Ambassador Aharon Leshno-Yaar, supra note 30.Google Scholar

⁶⁵ Id. Google Scholar

⁶⁶ Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects (July 2009). See also Israel Ministry of Foreign Affairs, FAQ: The Operation in Gaza—Factual and Legal Aspects (Aug. 16, 2009).Google Scholar

⁶⁷ Id., The Operation in Gaza: Factual and Legal Aspects, at 1.Google Scholar

⁶⁸ Initial Israeli Response to Gaza COI, supra note 31.Google Scholar

⁶⁹ Id., ¶ 1, at 1.Google Scholar

⁷⁰ Id., ¶ 4, at 2.Google Scholar

⁷¹ Id., ¶ 23, at 17.Google Scholar

⁷² Id., ¶ 5, at 2.Google Scholar

⁷³ Israel Ministry of Foreign Affairs, Gaza Operation Investigations: An Update (Jan. 29, 2010) [hereinafter Israeli Investigations Update].Google Scholar

⁷⁴ See Rory McCarthy, Israel Denies Gaza War Crimes in Report to UN, The Guardian (Jan. 31, 2010).Google Scholar

⁷⁵ Israeli Investigations Update, supra note 73, at 36–45.Google Scholar

⁷⁶ See generally Israeli Ministry of Foreign Affairs, http://www.mfa.gov.il/gazafacts.Google Scholar

⁷⁷ See Israeli Ministry of Foreign Affairs, IDF Military Advocate General Indicts Soldiers for Incidents During Operation Cast Lead (July 6, 2010), http://www.mfa.gov.il/MFA/Government/Communiques/2010/Military_Advocate_General_indicts_IDF_soldiers_Operation_Cast_Lead_6_Jul_2010.htm; Israeli Ministry of Foreign Affairs, Military Prosecution Indicts Two IDF Staff Sergeants for Unauthorized Conduct During Operation Cast Lead (Mar. 11, 2010), http://www.mfa.gov.il/MFA/Government/Communiques/2010/Military_Prosecution_indicts_sergeants_Operation_Cast_Lead_11-Mar-2010.htm. See, for example, the BBC News reported in 10 March 2010 that the “Israeli military has charged two of its soldiers with endangering the life of a Palestinian boy during Israel's offensive ….” Israel Charges of Human Shield, BBC News (Mar. 12, 2010); see also Israeli Sniper Faces Gaza Manslaughter Charges, BBC News (July 6, 2010), http://news.bbc.co.uk/2/hi/world/middle_east/10526541.stm; Isabel Kershner, Indictments in Gaza War Are Announced, New York Times (July 6, 2010). See also Israeli Soldier Shot Two Women as They Waved a White Flag, The Telegraph July 6, 2010), http://www.telegraph.co.uk/news/worldnews/middleeast/israel/7875702/Israeli-soldier-shot-two-women-as-they-waved-white-flag.html Google Scholar

⁷⁸ See Turning a Blind Eye: Impunity for Laws-of-War Violations During the Gaza War, Human Rights Watch (Apr. 10, 2010), http://www.hrw.org/node/89575.Google Scholar

⁷⁹ See Israel Ministry of Foreign Affairs, Gaza Operation Investigations: Second Update, (July 2010) http://www.mfa.gov.il/NR/rdonlyres/1483B296-7439-4217-933C-653CD19CE859/0/GazaUpdateJuly2010.pdf [hereinafter Israeli Second Updated Response].Google Scholar

⁸⁰ See Follow-up to the Report of the United Nations Independent International Fact-Finding Mission on the Gaza Conflict, Human Rights Council Res. A/HRC/RES/13/9, art. 9 (Apr. 14, 2010):Google Scholar

Decides, in the context of the follow-up to the report of the Independent International Fact-Finding Mission, to establish a committee of independent experts in international humanitarian and human rights laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly resolution 64/254, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards …. [Emphasis in original.]Google Scholar

⁸¹ Human Rights Council Res. 15/50, ¶¶ 42–43, 46 (Sept. 21, 2010), http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.50_AEV.pdf. The report also noted examples of “serious attempt[s] on the part of Israeli investigators to explain what happened ….” Id. at ¶ 46.Google Scholar

⁸² H.R.C. Res. 15/50, supra note 81, ¶¶ 44–50.Google Scholar

⁸³ Id. Google Scholar

⁸⁴ Human Rights Council Res. 15/6, U.N. Doc. A/HRC/RES/15/6 (Oct. 6, 2010). New commissioners were appointed because the previous commissioners had other obligations that prevented them from continuing in the position.Google Scholar

⁸⁵ Human Rights Council Res. 16/21, U.N. Doc. A/HRC/16/21 (Mar. 18, 2011).Google Scholar

⁸⁶ Id. at ¶ 77.Google Scholar

⁸⁷ Id. at ¶ 24.Google Scholar

⁸⁸ Id. at ¶ 77.Google Scholar

⁸⁹ Id. at ¶ 79.Google Scholar

⁹⁰ Goldstone Recantation, supra note 33.Google Scholar

⁹¹ Israel Seeks Retraction of Damaging UN Report, The Globe and Mail (3 April, 2011). See also Judge Goldstone to Visit Israel, Says Minister, The Guardian (Apr. 5, 2011).Google Scholar

⁹² Goldstone Recantation, supra note 33. Goldstone seemed to be speaking in particular about one notorious case where he found that Israel appeared to intentionally target civilians, though he seemed to generalize at times by stating that there was not an intentional policy of targeting civilians in general. In his “recanting” of this, he stated: “While the investigations published by the Israeli military and recognized in the UN committee's report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.” He then uses as the example the shelling of the al-Simouni home.Google Scholar

⁹³ For a discussion of how bizarre Goldstone's reconsideration may have seemed, see Cohen, Roger, The Goldstone Chronicles, New York Times (Apr. 7, 2011); John Dugard, Where Now for the Goldstone Report, New Statesman Blog (Apr. 6, 2011).Google Scholar

⁹⁴ See Jilani, Hina, Christine Chinkin & Desmond Travers, Goldstone Report: Statement Issued by Members of UN Mission on Gaza War, The Guardian (Apr. 14, 2011); Ed Pilkington & Conal Urquhart, Goldstone's Gaza Report Stands, UN Insists, The Guardian (Apr. 5, 2011). See also Member of UN Fact Finding Mission on Gaza Conflict Insists Report Stands Unchanged, Middle East Monitor (Apr. 4, 2011).Google Scholar

⁹⁵ See Ezzedeen Al-Qassam Brigades, UN Report Clear Proof of Israel's War Crimes (Sept. 16, 2009), www.gassam.ps/news-1840-UN_report_clear_proofs_of_Israels_war_crimes.html. Hamas initially rejected some of the findings—those related to its actions, of course—but evidently determined it was better to promote world-wide acceptance of the Goldstone Report.Google Scholar

⁹⁶ UN Receives Goldstone Responses, BBC News (Jan. 29, 2010), http://news.bbc.co.uk/go/pr/fr/-/2/hi/middle_east/8487301.stm. See “Case of applying recommendations of the United Nations Fact-Finding Mission report in relation to the Israeli aggression against Gaza (December 2008 to January 2009)”, prepared by the Government Committee for Follow-up to the Implementation of the United Nations Fact-Finding Mission Report of the de facto Gaza authoritiesGoogle Scholar

⁹⁷ Turning a Blind Eye, supra note 78, at 6. The report stated: In Gaza, Hamas has taken no meaningful steps to investigate and punish those who violated the laws of war. After rejecting criticism of its conduct during the war, Hamas established a commission headed by the Gaza Minister of Justice to look at the allegations in the Goldstone report. In January 2010 it released the commission's findings that Hamas's armed wing…and other Palestinian armed groups had fired rockets only at Israeli military targets, and civilian casualties from those attacks were mistakes, due to the weapons' technological limitations. The claim ignores the fact that the rockets fired into Israel that did not land in open terrain mostly struck in civilian populated areas…far from any legitimate military target ….Google Scholar

⁹⁸ H.R.C. Res. 15/50, supra note 81, ¶¶ 88–90.Google Scholar

⁹⁹ See Report of the Palestinian Independent Investigation Commission Established Pursuant to the Goldstone Report, U.N. Doc. A/64/890 (Aug. 2010).Google Scholar

¹⁰⁰ H.R.C. Res. 15/50, supra note 81, ¶ 70.Google Scholar

¹⁰¹ Id. at ¶ 73.Google Scholar

¹⁰² Id. at ¶ 5.Google Scholar

¹⁰³ H.R.C. Res. 16/21, supra note 85, ¶¶ 84–97.Google Scholar

¹⁰⁴ H.R.C. Res. 16/21, supra note 85, at ¶ 87.Google Scholar

¹⁰⁵ See supra note 38 and accompanying text.Google Scholar

¹⁰⁶ H.R. Res. 867.Google Scholar

¹⁰⁷ The United States statement noted, inter alia, that between the creation of the Human Rights Council in 2006 and the issuance of the Goldstone Report, “[the Human Rights Council] ha[d] passed 20 resolutions on Israel, more than the number of resolutions for all 191 other UN members combined. The Council also ha[d] held 11 special sessions, 5 focused exclusively on Israel.” See Posner State Department Response, supra note 62. The US is not the only one to assert that the UN has a long history of focusing disproportionately on Israel, or at least on the Israeli - Palestinian conflict, with primarily Middle Eastern and African nations forcing the issue. From the General Assembly to the UN's various human rights reporting instruments, historically no conflict is or has been more scrutinized. Many observers have noted the statistics related to the majority focus on Israel as opposed to other situations. See Theodoor van Boven, Fact-Finding in the Field of Human Rights, 3 Isr. Y.B. Hum. Rts. 93, 116 (1973): “It is no doubt true that the active and close concern of the United Nations for human rights and fundamental freedoms is almost exclusively concentrated on Southern Africa and the Middle East; the prevailing political climate in the United Nations is certainly the reason for this.” For a more recent example with respect to the Human Rights Council (i.e. since April 2006) is the Freedom House Report, The UN Human Rights Council Report Card: 2007–2009, (Sept. 10, 2009), http://www.freedomhouse.org/sites/default/files/inline_images/UNHRC%20Council%20Report%202007-2009.pdf. The report states: The Council's performance with regard to special sessions remains disappointing in terms of addressing urgent human rights issues, but has decidedly improved since the first year of the Council, when three of the first four special sessions focused on Israel. Of the seven special sessions held since June 2007, two focused on Israel and the other five focused on Burma, the world food crisis, the Democratic Republic of Congo, the economic and financial crisis, and Sri Lanka.Google Scholar

Id. at 8. The report also had the following to say: Israel remained the target of an inordinate number of both condemnatory resolutions and special sessions. Israel was the target of 10 out of 18 condemnatory resolutions passed during the period of this report (and 19 out of 31 since the first session of the Council), the language of which is consistently one-sided, assigning sole responsibility to Israel for the violations of human rights in the Occupied Palestinian Territories. Israel was also the target of three of the four first special sessions called by the Council and was the target of two of the seven special sessions that took place during this reporting period.Google Scholar

Id. at 9. See also House, Freedom, The UN Human Rights Council Report Card 2009–2010, 2 (Sept. 15, 2010), http://www.freedomhouse.org/sites/default/files/inline_images/UNHRC%20Report%202009-2010.pdf.Google Scholar

¹⁰⁸ See, e.g., Initial Israeli Response to Gaza COI, supra note 31.Google Scholar

¹⁰⁹ At the time, she was an Advocate of the Supreme Court of Pakistan, and had formerly been a Special Representative of the Secretary-General on the situation of human rights defenders. She was also a member of the International Commission of Inquiry on Darfur in 2004.Google Scholar

¹¹⁰ Colonel Travers is a former Officer in Ireland's Defense Forces as well as a member of the Board of Directors of the Institute for International Criminal Investigations. Goldstone Report, supra note 5, ¶¶ 2, 132.Google Scholar

¹¹¹ See Council, Human Rights, Human Rights Situation in Palestine and Other Occupied Arab Territories: Report of the High-level Fact-finding Mission to Beit Hanoun Established under Council Resolution S-3/1, U.N. Doc. A/HRC/9/26 (Sept. 1, 2008).Google Scholar

¹¹² Christine Chinkin, et. al., Israel's Bombardment of Gaza Is Not Self-defense —It's a War Crime, Sunday Times at 16 (Jan. 11, 2009).Google Scholar

¹¹³ Id. Google Scholar

¹¹⁴ Id. Google Scholar

¹¹⁵ See generally H.R. Res. 867, supra note 61.Google Scholar

¹¹⁶ See Letter of Ambassador Aharon Leshno-Yaar, supra note 30. See also Initial Israeli Response to COI, supra note 31, ¶ 17.Google Scholar

¹¹⁷ Chinkin, et. al., supra note 112.Google Scholar

¹¹⁸ See Watch, U.N., Request to Disqualify Prof. Christine Chinkin from UN Fact Finding Mission on the Gaza Conflict, (Aug. 20, 2009).Google Scholar

¹¹⁹ U.N. Watch, UN Goldstone Inquiry Rejects ‘so-called’ Petition of UN Watch; Denies Mission is Quasi-judicial, (Aug. 30, 2009), http://blog.unwatch.org/?p=451. See also Justice Goldstone's talk at Brandeis University, available at http://www.brandeis.edu/now/2009/november/gazaforumcoverage.html; and Goldstone Walks a Fine Line in an Ancient War Zone, Business Day (Apr. 8, 2009), www.businessday.co.za/articles/Content.aspx?id-77618. See also Beckerman, Gal, Goldstone: ‘If This Was a Court of Law, There Would Have Been Nothing Proven’, Jewish Daily Forward (Oct. 16, 2009), www.forward.com/articles/116269.Google Scholar

¹²⁰ See Beckerman, supra note 119.Google Scholar

¹²¹ Goldstone Report, supra note 5, ¶ 1968.Google Scholar

¹²² Goldstone has asserted since the report that: “Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank.” Goldstone Recantation, supra note 33.Google Scholar

¹²³ Goldstone subsequently addressed the purpose of large-scale UN COIs, such as that in Gaza, in an interview: When he began working [as chief prosecutor of the ICTY], Goldstone was presented with a report commissioned by the U.N. Security Council based on what he said was a fact-finding mission similar to…Gaza. “We couldn't use that report as evidence at all,” Goldstone said. “But it was a useful roadmap for our investigators, for me as chief prosecutor, to decide where we should investigate. And that's the purpose of this sort of report.”Google Scholar

[Emphasis added]. See Beckerman, Gal, supra note 119.Google Scholar

¹²⁴ Id. Google Scholar

¹²⁵ Dershowitz, supra note 58, at 5.Google Scholar

¹²⁶ According to Goldstone, in the Executive Summary of the Goldstone COI, published by the European Human Rights Law Review, “the Mission adhered to an impartial and independent analysis of the parties' compliance with their obligations under general international law, the Charter of the United Nations, international humanitarian law, international human rights law and international criminal law.” Goldstone, et. al., Report on UN Fact Finding Mission on the Gaza Conflict, 2 Eur. Hum. Rts. L. Rev. 125, 125 (2010).Google Scholar

¹²⁷ Goldstone Report, supra note 5, ¶ 1814.Google Scholar

¹²⁸ Id. at ¶¶ 158, 161: “The methods adopted to gather and verify information and reach conclusions were for the most part guided by best practice methodology in the context of United Nations investigations.”Google Scholar

¹²⁹ H.R.C. Res. 15/50, supra note 81, ¶ 23 [Emphasis added.]Google Scholar

¹³⁰ Goldstone reiterated his assertion that the Gaza COI was not to live up to judicial standards: “Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding.” [Emphasis added.] Goldstone Recantation, supra note 33.Google Scholar

¹³¹ Israel Ministry of Foreign Affairs, Behind the Headlines: The Human Rights Council Commission of Inquiry on Gaza, (Sept. 7, 2014), http://mfa.gov.il/MFA/ForeignPolicy/Issues/Pages/The-Human-Rights-Council-commission-of-inquiry-on-Gaza.aspx. See also Cotler, Irwin, The Fatal Flaws of the Schabas Inquiry, The Jerusalem Post (Sept. 11, 2014), http://www.jpost.com/Opinion/The-fatal-flaws-of-the-Schabas-Inquiry-375139.Google Scholar

¹³² Behind the Headlines, supra note 131.Google Scholar

¹³³ See United Nations Human Rights Office of the High Commissioner, Press Statement on the Resignation of the Chairperson of the Commission of Inquiry on the 2014 Gaza Conflict, (Feb. 3, 2015), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15535&LangID=E. The final report was due on March 23 of that year, though because of the resignation it was released on 29 June 2015.Google Scholar

¹³⁴ William Schabas, Letter to HE Joachim Rúcker President, (Feb. 2, 2015), http://blog.unwatch.org/wp-content/uploads/r%C3%BCcker.schabas.2.2.15.resignation-letter.pdf.Google Scholar

¹³⁵ The Goldstone Report ends with: “[t]he Mission is of the view that the prosecution of persons responsible for serious violations of international humanitarian law would contribute to ending such violations, to the protection of civilians and to the restoration and maintenance of peace.” See Report, Goldstone, supra note 5, ¶ 1966. Goldstone himself has since repeated that this was the primary purpose of the COI. See Goldstone, Richard, Justice in Gaza, New York Times (Sept. 17, 2009), www.nytimes.com/2009/09/17/opinion/17goldstone.html.Google Scholar

¹³⁶ Indeed, many good NGOs will adopt legal or quasi-legal standards with respect to impartiality in order to ensure the legitimacy and reliability of their reports. For without credibility, neither NGO nor UN inquiries are of much value (except, perhaps, as unreliable political tools). Thus, though I distinguish here between NGO COIs and UN COIs, there is no reason why an NGO inquiry could not be seen as legalistic, nor is there any reason why it will or should not exhibit a fidelity to legality.Google Scholar

¹³⁷ Truth Commissions, or even international courts, generally circumscribe the timeline that is to be considered.Google Scholar

¹³⁸ Moshe Halbertal, for example, has stated with respect to the historical review conducted by the Goldstone Report: The honest reader of these sections cannot avoid the impression that their objective is to prepare a general indictment of Israel as a predatory state that is geared toward violating human rights all the time. It will naturally follow from such a premise that the Gaza operation was yet another instance of Israel's general wicked behaviour [sic]. These long sections are the weakest, the most biased, and the most outrageous in this long document. They are nothing if not political.Google Scholar

See Halbertal, supra note 58.Google Scholar

¹³⁹ Goldstone Report, supra note 5, ¶¶ 176–97.Google Scholar

¹⁴⁰ Although there are certainly other chapters in the Goldstone Report that provide historical background, these other chapters tend to be issue-centric in that they are focused on the relationship between specific policies or issues, such as the Israeli blockade of the Gaza Strip, and the subsequent military activity, rather than on offering a more broad, general historical contextualization of the conflict. Foremost among these other sections might be chapter XVII on “The Impact of the Blockade and of the Military Operations on the People of Gaza and their Human Rights.” Goldstone Report, supra note 5, ¶¶ 1217–335. In general, these issue specific resorts to history provide more of the type of information and context that is necessary to understand the scope of the alleged human rights abuses found in the Goldstone Report than the broader historical contextualization offers.Google Scholar

¹⁴¹ Id. at ¶¶ 177–97.Google Scholar

¹⁴² Id. at ¶ 177.Google Scholar

¹⁴³ Id. at ¶ 178.Google Scholar

¹⁴⁴ Id. Google Scholar

¹⁴⁵ Id. at ¶ 180.Google Scholar

¹⁴⁶ Goldstone Report, supra note 5, ¶¶ 181–83.Google Scholar

¹⁴⁷ Id. at ¶ 185.Google Scholar

¹⁴⁸ Id. at ¶ 186.Google Scholar

¹⁴⁹ Id. at ¶ 187.Google Scholar

¹⁵⁰ Id. at ¶ 188.Google Scholar

¹⁵¹ Id. at ¶¶ 193–4.Google Scholar

¹⁵² Id. at ¶¶ 198–209.Google Scholar

¹⁵³ Id. at ¶¶ 210–22.Google Scholar

¹⁵⁴ Goldstone Report, supra note 5, ¶ 206.Google Scholar

¹⁵⁵ Id. at ¶¶ 223–310.Google Scholar

¹⁵⁶ See Halbertal, supra note 58.Google Scholar

¹⁵⁷ Bisharat, George E., et. al., Israel's Invasion of Gaza in International Law, 38 Denv. J. Int'l L. & Pol'y 41, 45 (2009).Google Scholar

¹⁵⁸ This is not to say that the historical context is not relevant in the case of the Gaza COI or any other UN COI, only that the extent of its relevance and what timeframe is relevant are contextual decisions to be made contingent on other factors. The relevance of any history must be maintained by reference to what precisely that history is legally and politically relevant to demonstrating. Thus, the extent of the historical inquiry will necessarily depend on at least: (1) the extent to which the inquiry is about providing political, as opposed to legal, context in order to, for example, understand the broader dispute and potential solutions thereto; and, (2) the determination made as to the scope of the applicable law—meaning that if the COI is limited to considerations of war crimes then historical context may play a smaller role, while a COI that considers the purported breach of social and economic rights may need to resort to some greater degree to historical context in order to situate those breaches.Google Scholar

¹⁵⁹ Goldstone Report, supra note 5, ¶¶ 177–78.Google Scholar

¹⁶⁰ Id. at ¶ 178.Google Scholar

¹⁶¹ Id. at ¶ 182.Google Scholar

¹⁶² Id. at ¶¶ 183, 185, 201–03. The language used in such historical narratives can also be used to support claims of bias. For example, the Goldstone Report refers to the construction of the “Wall” starting in June 2002, which the Israelis prefer to call a barrier or fence. At the same time, there is no discussion of the controversy surrounding the purposes and actions of Hamas. As Halbertal notes, “[i]n the supposed context that the report analyzes, there is no mention of Hamas's role and its ideology as reflected in its extraordinary charter, which calls for the destruction of Israel and the genocidal killing of Jews.” See Halbertal, supra note 58, at 355.Google Scholar

¹⁶³ Goldstone Report, supra note 5, ¶¶ 198, 206.Google Scholar

¹⁶⁴ Id. at ¶¶ 198–99.Google Scholar

¹⁶⁵ Id. at ¶ 200.Google Scholar

¹⁶⁶ Id. at ¶ 204.Google Scholar

¹⁶⁷ See Stiegman, supra note 18, at 390.Google Scholar

¹⁶⁸ Goldstone Report, supra note 5, at ¶¶ 12, 153, 223.Google Scholar

¹⁶⁹ A distinction might be drawn here between a war crimes COI and a truth commission. For a discussion of the distinction between COIs and truth commissions. See generally Hayner, supra note 9; and Freeman, supra note 9.Google Scholar

¹⁷⁰ Goldstone Report, supra note 5, at ¶ 12, 153, 223.Google Scholar

¹⁷¹ Id. at ¶ 153. Further, the COI also took “into consideration matters occurring after the end of military operations that constitute continuing human rights and international humanitarian law violations related to or as a consequence of the military operations, up to 31 July 2009”. Id. at ¶¶ 12, 153.Google Scholar

¹⁷² Goldstone Report, supra note 5, ¶ 1373.Google Scholar

¹⁷³ Id. at ¶ 1374.Google Scholar

¹⁷⁴ One important purpose of truth commissions is to create a shared sense of history, community and belonging, to provide a history that can be relied upon as a source for understanding and for confronting problems that are better understood in their historical context. A corollary to this objective is to create a shared (though potentially disputed) understanding of the history that has plagued the nation or region and offer a cathartic outlet for the dispute, which flows from knowing the truth and dealing with the past, which it is said allows the nation to move productively toward its future. Arguable, the political and social circumstances that obtain in the Middle East at this time are not conducive to accomplishing such an objective. In any event, it was unclear that this was indeed the objective.Google Scholar

¹⁷⁵ As was noted, Israel did not grant access to the West Bank. See, e.g., Report, Goldstone, supra note 5, ¶ 1376.Google Scholar

¹⁷⁶ Goldstone Report, supra note 5, ¶ 14.Google Scholar

¹⁷⁷ Id. at para. 16.Google Scholar

¹⁷⁸ So, for example, the Goldstone Report notes that the “Israeli Government alleges that ‘Hamas abused the protection accorded to places of worship, making a practice of storing weapons in mosques‘”. But then the report only notes the investigation of one Mosque, investigated seemingly because it was attacked by Israel, and notes that “the Mission was not able to investigate the allegation of the use of mosques generally by Palestinian groups for forming weapons.” No explanation is given as to why one of the most serious and prevalent of Israeli accusations was not further investigated. See Goldstone Report, supra note 9 at paras. 464–65.Google Scholar

¹⁷⁹ Rain of Fire, supra note 21, at 6.Google Scholar

¹⁸⁰ Dershowitz, supra note 58, at 39.Google Scholar

¹⁸¹ Id. (citing the Goldstone Report, supra note 5, ¶ 465).Google Scholar

¹⁸² See I Lost Everything, Human Rights Watch 5 (May 13, 2010), http://www.hrw.org/en/node/90317/section/1.Google Scholar

¹⁸³ See, e.g., Initial Israeli Response to Gaza COI, supra note 31, ¶ 18.Google Scholar

¹⁸⁴ See, e.g., Franck, Thomas M. & H. Scott Fairley, Procedural Due Process in Human Rights Fact-Finding by International Agencies, 74 Am. J. Int'l L. 408 (1980).Google Scholar

¹⁸⁵ Goldstone Report, supra note 5, at 15, ¶ 18.Google Scholar

¹⁸⁶ Id. at ¶ 158. See also Goldstone Report, ¶ 161 (“The methods adopted to gather and verify information and reach conclusions were for the most part guided by best practice methodology developed in the context of United Nations investigations.”).Google Scholar

¹⁸⁷ Id. at ¶ 18.Google Scholar

¹⁸⁸ Id. at ¶¶ 21, 139, 159(b).Google Scholar

¹⁸⁹ Id. at ¶¶ 5, 133, 139.Google Scholar

¹⁹⁰ Id. at ¶¶ 19; 159(b).Google Scholar

¹⁹¹ Id. at ¶ 159(b).Google Scholar

¹⁹² For a complete list see Goldstone Report, supra note 5, ¶ 137.Google Scholar

¹⁹³ Id. at ¶¶ 6; 140.Google Scholar

¹⁹⁴ Goldstone Report, supra note 5, ¶ 140.Google Scholar

¹⁹⁵ Id. at ¶¶ 7, 141.Google Scholar

¹⁹⁶ Id. at ¶¶ 19, 160. The 300-plus reports amounted to over 10,000 pages according to the Goldstone Report.Google Scholar

¹⁹⁷ Id. at ¶ 22.Google Scholar

¹⁹⁸ Id. Google Scholar

¹⁹⁹ Id. Google Scholar

²⁰⁰ Goldstone Report, supra note 5, ¶¶ 23, 168.Google Scholar

²⁰¹ Id. Google Scholar

²⁰² Id. at ¶¶ 8, 20.Google Scholar

²⁰³ Id. at ¶ 20.Google Scholar

²⁰⁴ Id. at ¶ 22.Google Scholar

²⁰⁵ Goldstone Report, supra note 5, ¶¶ 9, 145.Google Scholar

²⁰⁶ Id. at ¶ 144.Google Scholar

²⁰⁷ Id. at ¶ 441.Google Scholar

²⁰⁸ Id. at ¶ 26.Google Scholar

²⁰⁹ See generally Halbertal, supra note 58.Google Scholar

²¹⁰ Bailey, supra note 34, at 266.Google Scholar

²¹¹ Goldstone Report, supra note 5, ¶ 24.Google Scholar

²¹² Id. at ¶ 170.Google Scholar

²¹³ Id. Google Scholar

²¹⁴ Id. at ¶ 1378.Google Scholar

²¹⁵ The one exception being that the Palestinian armed groups' websites were found unreliable in that they exaggerated the commission of their own crimes or their “successes” as against Israel. In other words, the exception is not a third party report, but a finding that one of the parties to the dispute was unreliable in its admissions that it had committed a crime. Id. at ¶ 458.Google Scholar

²¹⁶ See, e.g., Report, Goldstone, supra note 5, n.257–64.Google Scholar

²¹⁷ Chapter VIII of the Goldstone Report also relied on secondary sources to a greater extent than elsewhere in the report because it could not find first-hand witnesses to interview in many cases. Id. at ¶ 141.Google Scholar

²¹⁸ See, e.g., Rain of Fire, supra note 21, at 6.Google Scholar

²¹⁹ The DRC's report states: “each reported incident had to be corroborated by at least one independent source in addition to the primary source in order to confirm its authenticity.” See DRC Mapping Exercise, supra note 6, ¶¶ 117, 10. Further, the Panel of Experts in Angola required direct evidence were it to name a responsible political official of wrongdoing (violation of sanctions) and corroborating evidence by at least two sources for it to be deemed credible. See Ricart, Luciana T., Due Process of Law in the Fact-Finding Work of the Security Council's Panels of Experts: An Analysis in Terms of Global Administrative Law, 4 Inst. Int'l L. & Just. Emerging Scholars Paper 8 (2008), http://www.iilj.org/wp-content/uploads/2016/08/Ricart-Due-Process-of-Law-in-the-Fact-Finding-work-of-the-Security-Council%E2%80%99s-Panels-of-Experts-2008.pdf.Google Scholar

²²⁰ DRC Mapping Exercise, supra note 6, ¶ 106.Google Scholar

²²¹ Orentlicher, D., Bearing Witness: The Art and Science of Human Rights Fact-Finding, 3 Harv. Hum. Rts. J. 83, 130 (1990).Google Scholar

²²² Goldstone Report, supra note 5, ¶¶ 25, 172. Goldstone has also “emphasized that his conclusion that war crimes had been committed was always intended as conditional.” See also Beckerman, supra note 119.Google Scholar

²²³ See generally Beckerman, supra note 119. See also Goldstone Report, supra note 5, ¶ 171.Google Scholar

²²⁴ Note also that it may be seen to be taken from NATO military parlance. This has its advantages and disadvantages, but it suggests that military personnel – often associated with UN war crimes COIs at various levels and to various degrees—not only understand the standard of proof, at least at some level, but also do not relate it to a criminal standard as used by courts of law.Google Scholar

²²⁵ See DRC Mapping Exercise, supra note 6, ¶ 7 (“The level of evidence required was naturally lesser than would be expected from a case brought before a criminal court. The question was therefore not one of being satisfied beyond [a] reasonable doubt that a violation was committed but rather of reasonably suspecting that the incident did occur.” [Emphasis added.]) See also DRC Mapping Exercise, supra note 6, ¶ 101.Google Scholar

²²⁶ See Syria COI, supra note 6, ¶ 5. See generally U.N. Doc. S/RES/1564, supra note 4.Google Scholar

²²⁷ Gaza 2015 COI, supra note 5, ¶ 19. Helpfully, the COI went on to explain this in a little more detail: “This means that the commission, on the basis of reliable and consistent information, was satisfied that a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.”Google Scholar

²²⁸ In this way it raises the question: When did the available evidence become sufficient to prove the case? When it was sufficient!Google Scholar

²²⁹ Goldstone Report, supra note 5, ¶¶ 25, 172. [Emphasis Added.] “Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy.” Id. at ¶ 1215. As but one example, the mens rea of recklessness was met in regard to the Israeli shelling of the UNRWA field office due to the fact that shelling continued after the Israeli forces were made aware of the existence of the compound, the hazardous (explosive material) contained in it. Id. at ¶ 594. The mens rea was not associated with any particular individual.Google Scholar

²³⁰ Id. at ¶¶ 1919, 1921–23, 1927–29, 1930.Google Scholar

²³¹ Goldstone Report, supra note 5, ¶ 1884. [Emphasis added.]Google Scholar

²³² Report of an Expert Meeting which Assessed Procedural Criticisms made of the UN Fact-Finding Mission on the Gaza Conflict (The Goldstone Report), Chatham House 13 (Nov. 27, 2009), www.chathamhouse.org.uk/files/15572_il271109summary.pdf [hereinafter Chatham House Report].Google Scholar

²³³ Goldstone Report, supra note 5, ¶ 496.Google Scholar

²³⁴ Note that the Gaza COI did find Hamas responsible for further breaches of international law. For example, with respect to its targeting of Fatah affiliates, the Goldstone Report states that Hamas committed “serious violations of human rights”, in particular with respect to article 3 (right to life, liberty and security of the person), article 5 (freedom from torture and cruel, inhuman or degrading treatment or punishment), article 9 (no one shall be subjected to arbitrary arrest or detention), articles 10 and 11 (right to fair and impartial legal proceedings), and article 19 (regarding freedom of opinion and expression) of the Universal Declaration of Human Rights. Id. at ¶ 1372.Google Scholar

²³⁵ Why this was the case is another question. This of course created its own set of problems. It has been asserted that intent was regularly imputed to Israeli operations, but was not similarly—and under similar circumstances—imputed to Palestinian actions. More shall be offered on this argument below.Google Scholar

²³⁶ Goldstone Report, supra note 5, ¶¶ 814, 815, 1173–75. Both the equivocal and certain are used in a particularly confusing manner in paragraph 1175 (“The Mission considers that the severe beatings, constant humiliating and degrading treatment and detention in foul conditions allegedly suffered by individuals in the Gaza Strip … would constitute torture, and a grave breach under article 147 of the Fourth Geneva Convention …. Such violations also constitute war crimes.” [Emphasis added.]Google Scholar

²³⁷ Goldstone Report, supra note 5, ¶ 816. There are numerous examples of such contradictions throughout the Goldstone Report, including sometimes in the same paragraph. See, e.g., ¶ 1587. In one convoluted paragraph, it was said that ill-treatment during arrest and detention by Hamas, “raise[d] concerns and warrant[ed] proper investigation,” while arrests and detentions of political affiliations were “legally unacceptable” and “would violate the right not to be arbitrarily detained.” [Emphasis added.]Google Scholar

²³⁸ Id. at ¶ 595.Google Scholar

²³⁹ Chatham House Report, supra note 232, at 13.Google Scholar

²⁴⁰ In similar wording to the sections on Israel, where first-hand accounts were difficult to gather, in Chapter VIII the Goldstone Report states: “To gather first-hand information on the matter, the Mission requested a meeting with representatives of armed groups. However, the groups were not agreeable to such a meeting. The Mission, consequently, had little option but to rely upon indirect sources to a greater extent than for other parts of its investigation.” [Emphasis added.] Goldstone Report, supra note 5, ¶ 441.Google Scholar

²⁴¹ Id. at ¶¶ 449–52. See particularly para 452: In view of the information communicated to it and the material it was able to review, the Mission believes that there are indications that Palestinian armed groups launched rockets from urban areas. In those instances in which Palestinian armed groups did indeed fire rockets or mortars from urban areas the question remains whether this was done with the specific intent of shielding the combatants from counter-attack. The Mission has not been able to obtain any direct evidence on this question; nor do reports from other observers provide a clear answer. [Emphasis added.]Google Scholar

The Goldstone Report then cites the International Crisis Group as finding from separate interviews that the intent was there and was not there, respectively (see ¶ 453). Why the Goldstone Report did not indicate that sometimes the intent seemed present and others not, is not addressed. Of course, to make out the crime, one instance of intent is sufficient.Google Scholar

²⁴² See, e.g., Report, Goldstone, supra note 5, ¶ 1581 (“Reports that the Palestinian Authority interfered with the work of journalists and the media give rise to the concern that the right to freedom of opinion and expression has been interfered with.” [Emphasis added]).Google Scholar

²⁴³ Id. at ¶¶ 894, 389, 778. See also ¶ 1890 (“[The outcome and modalities] were also to a large degree aimed at destroying or incapacitating civilian property and the means of subsistence of the civilian population.”); and ¶ 1891 (“It is clear from evidence gathered by the Mission that the destruction of food supply installations, water sanitation systems, concrete factories and residential houses was the result of a deliberate and systematic policy by the Israeli armed forces.” [Emphasis added]). Compare this with the mens rea of recklessness, which is often accompanied by equivocating language such as “it appears.” There are some cases, however, where the certainty of the language appears higher (see id. at ¶¶ 594, 838, 1433). For example: “The Mission finds that the Israeli armed forces were systematically reckless in determining to use white phosphorous in built-up areas and in particular in and around areas of particular importance to civilian health and safety.” [Emphasis added.] Id. at ¶ 894.Google Scholar

²⁴⁴ Id. at ¶¶ 883–84. [Emphasis added.]Google Scholar

²⁴⁵ Id. at ¶ 800.Google Scholar

²⁴⁶ Id. at ¶ 370. The result that seems to be implied is that if fighting takes place in a city—as it usually does today—then any bombing in that city will be a crime so long as the bombing party does not offer an explanation. In modern warfare, this is tantamount to saying that so long as one does not participate in a UN COI, one will be found guilty of war crimes.Google Scholar

²⁴⁷ Unlike judges in common law systems, UN COI commissioners have not traditionally had the assistance of prosecution and defense attorneys—though such attorneys are often present to aid commissioners in domestic common law COIs, for example in Canada and the UK. UN COI commissioners are therefore responsible for making the case, which includes acting as prosecution, defense and judge.Google Scholar

²⁴⁸ Before continuing it should be noted that this was not always the case; at times, the Gaza COI did indeed resort to option (2) above. In other words, the Goldstone Report did at times treat the lack of information and territorial access as a methodological shortcoming. As but one example, with respect to the death of Muhammad Hajji, killed in his living room by errant fire during the military invasion, the Goldstone Report stated: On the basis of the information before it, the Mission can neither make a statement as to what type of weapon killed him, nor as to whether he was the intended target of a direct attack. The circumstances of his death suggest, however, that he was killed by fire from the Israeli armed forces while at home in a room with his children.“ [Emphasis added.] Goldstone Report, supra note 5, at ¶ 753.Google Scholar

However, more than anything the fact that the Goldstone Report sometimes opted for option (2) highlighted the extent to which it did not always do so.Google Scholar

²⁴⁹ His strongest statement was: “If I had known then what I know now, the Goldstone Report would have been a different document.” See Recantation, Goldstone, supra note 33.Google Scholar

²⁵⁰ Goldstone Report, supra note 5, ¶ 705. [Emphasis added.]Google Scholar

²⁵¹ Id. at ¶ 811. [Emphasis added.]Google Scholar

²⁵² Id. at ¶ 812. [Emphasis added.] In a slightly less clear finding shortly thereafter, the Goldstone Report states: “From the facts ascertained, the Mission finds that the conduct of the Israeli armed forces in these cases would constitute grave breaches of the Fourth Geneva Convention in respect of willful killings and willfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.” [Emphasis added.] Id. at ¶ 816.Google Scholar

²⁵³ Id. at ¶ 708.Google Scholar

²⁵⁴ Goldstone Report, supra note 5, ¶¶ 717–22.Google Scholar

²⁵⁵ Id. at ¶ 714.Google Scholar

²⁵⁶ Id. Google Scholar

²⁵⁷ Id. at ¶¶ 706–35 (see specifically ¶ 715).Google Scholar

²⁵⁸ Id. at ¶ 722.Google Scholar

²⁵⁹ Id. at ¶ 730.Google Scholar

²⁶⁰ H.R.C. Res. 15/6, supra note 85, ¶ 27.Google Scholar

²⁶¹ H.R.C. Res. 15/6, supra note 85, ¶ 79.Google Scholar

²⁶² It must be said that Justice Goldstone's reading of the Human Rights Council Committee of Independent Experts report finds exculpatory evidence in this regard that is otherwise hard to see. Put another way, it is hard to find evidence in the Report of an intentional high-level policy to target civilians based on the facts found in the Goldstone Report. At the same time, it is likewise hard to find evidence that there was not an intentional policy in the Committee of Independent Experts report reviewing subsequent Israeli investigations.Google Scholar

²⁶³ In part, this seems to be what the other three Gaza COI commissioners were asserting in their response to Goldstone's reconsideration. See Jilani, Hina, Christine Chinkin & Desmond Travers, Goldstone Report: Statement Issued by Members of UN Mission on Gaza War, The Guardian (Apr. 14, 2011) (“The mission and the report are part of a truth-seeking process that could lead to effective judicial processes. Like all reports of similar missions of the UN, it provided the basis for parties to conduct investigations for gathering of evidence, as required by international law, and, if so warranted, prosecution of individuals who ordered, planned or car ried out international crimes.”)Google Scholar

²⁶⁴ See, e.g., White Flag Deaths, supra note 22.Google Scholar

²⁶⁵ Again, from the publicly available information at the time of Goldstone's reconsideration, the result is not so clear.Google Scholar

²⁶⁶ Kenneth Roth, Gaza: The Stain Remains on Israel's War Record: Richard Goldstone's Partial Retraction of His Own Report Doesn't Excuse the Conduct of Israel's War in Gaza, The Guardian (Apr. 5, 2011). [Emphasis added.]Google Scholar

²⁶⁷ H.R.C. Res. 16/21, supra note 85, ¶ 8.Google Scholar

²⁶⁸ Goldstone Report, supra note 5, ¶ 1335. [Emphasis added.]Google Scholar

²⁶⁹ Id. at ¶ 1691: From the facts available, the Mission finds that the rocket and mortars attacks, launched by Palestinian armed groups in Gaza, have caused terror in the affected communities of southern Israel and in Israel as a whole …. This indicates the commission of an indiscriminate attack on the civilian population of southern Israel, a war crime, and may amount to crimes against humanity. [Emphasis added.]Google Scholar

²⁷⁰ See generally, Chatham House Report, supra note 232.Google Scholar

²⁷¹ Goldstone Report, supra note 5, ¶ 1683. Another example is the Goldstone Report's reference to the prohibition of indiscriminate attacks in Article 51(4) of Additional Protocol I to the Geneva Conventions, without a corresponding explanation of what indiscriminate might mean in the context, and how it can and has been interpreted in international law.Google Scholar

²⁷² One salient exception to this proposition is the section of the Report on Accountability and Judicial Remedies. See, e.g, Goldstone Report, supra note 5, at 388–90.Google Scholar

²⁷³ Id. at ¶ 1950. Note that the conclusions do no better in amalgamating the legal and factual findings with the relevant provisions of international law.Google Scholar