Extracts from the near verbatim report (below right)
Questioner. On the same issue, because your answer is not quite clear. I was wondering whether the
scope of the mission had been widened in terms of the scope of the resolution, because both you and the President of the Council
insist on all violations, which means what my colleague said…
Justice Goldstone: As far as I am concerned, the mission will be guided by the invitation which I received
from the President. I think that any
question in relation to the relationship between that and the resolution of the Human Rights Council is a matter I would prefer
the President to deal with.
Let me aver to the questions you have just raised. There is a mandate, if you look at OP 14 [operative paragraph 14 of HRC
resolution S/9-1], that spells out the mandate
paragraph 14 of resolution S9/-1
Human Rights council
Decides to dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council,
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
Click here for more recent correspondence
An open response to Judge Goldstone from Maurice Ostroff
May 23, 2009
Dear Judge Goldstone,
Thank you very much for your courteous responses to my
emails and for the copy of the near verbatim report of the April 16, press conference.
I refrained from writing until
now because in your email of May 13 you said that, at that stage you could not make any exceptions to the decision that no
further public comments would be made by the Fact Finding Mission until developments warrant them.
I am writing now
because it appears,in view of your widely publicized statements on May 20, that developments again warrant public statements.
You are reported as saying that the UN investigation into possible war crimes in Israel and Gaza will go ahead with or without
Israel’s cooperation and you expressed disappointment at not receiving a positive response from the Israeli government.
In the latter connection I respectfully ask whether you have received a positive response from Hamas indicating willingness
to allow transparent investigations into its human rights violations of international law; firing rockets from civilian centers
into civilian areas, assassination of Fatah members and depriving Gilad Shalit of his rights under the Geneva conventions.
of a positive response from the Israel Government is really not surprising in view of the blatant anti-Israel wording of the
enabling resolution S/9-1, which drastically departs from the even-handed spirit of the March 16 open letter you and others
sent to Secretary-General Ban Ki-moon. Unlike resolution S/9-1, in that letter you called for investigation of the conduct
and actions by both the Israeli military and the Palestinian armed groups.
While you are held in the highest
regard for your integrity, there is an understandable concern that you may not be allowed to exercise your declared intention
to conduct an impartial investigation into all aspects of the conflict. Many of us fear that your hands will be tied by the
HRC President’s response to a question at the April 16 press conference about whether the scope of the mission has been
widened in terms of the enabling resolution.
The President’s curt reply was disconcerting, indicating that very
little if any departure from the restrictive wording of clause 14 of resolution S/9-1 will be tolerated.
As you well
know, the wording of OP14 unambiguously indicates that the HRC has already “decided” that violations have been
committed ONLY by Israel and that your mission is denied the authority to look into possible violations by anyone else.
The resolution fails to call for investigating the casus belli and does not even make the pretence of adhering to the
convention of referring to violations as “alleged,” until proved. Only Israel is called upon not to obstruct the
process of investigation. Other parties to the conflict are evidently exempted from this requirement. In the circumstances
it is hardly surprising that the Israel Government regards your mandate as flawed.
Nevertheless, in response to your
statement at the April 16 press conference that the Mission would seek submissions from all relevant persons and your statement
that you wouldn't exclude any advice, I offer the following comments in the hope that the Mission will be permitted to take
them into consideration, despite the narrow wording of the resolution.
1. Military aspects. As you said that
you would be dependent on appropriate advice on the military aspects, I suggest sir, that you invite evidence from Colonel
Richard Kemp CBE, a former Commander of British forces in Afghanistan and a senior adviser to the British government who was
interviewed by the BBC about the Gaza operation on January 9, 2009. A transcript is available at http://maurice-ostroff.tripod.com/id199.html
2. Incitement. It is undeniable that for so long as adults and children in the Palestinian territories,
from their earliest years, continue to be indoctrinated to hate, no peaceful solution will be possible. The present generation
cannot be unaffected by having been subject to years of portrayal of Jews in cartoons reminiscent of those used in Nazi Germany,
with Israelis depicted as sub-human creatures. If your mission intends not only to apportion blame, but also to contribute
towards a solution, it cannot avoid addressing this fundamental but neglected issue.
As most visitors to the Palestinian
areas do not understand Arabic, they remain ignorant of this insidious incitement. Fortunately, for those interested in seeking
the truth, organizations like MEMRI and Palestine Media Watch (PMW) provide outstanding services, translating the Arab media
There can be no doubt that your mission will broaden its outlook by inviting evidence from these organizations.
Memri’s email address is firstname.lastname@example.org and its website URL is http://www.memri.org/. PMW’s archives may be viewed at http://www.pmw.org.il/tv.html and its home page at http://www.pmw.org.il/index.html
3. Gilad Shalit. There is one blatantly cruel crime against humanity that your mission under its Human
Rights banner cannot ignore. It cries out for the immediate attention and does not require any complex forensic investigation.
The facts are known.
If mental torture is included in the ban on torture, the deliberate torture of Gilad’s family
by Hamas cannot be ignored. What greater torture can there be than tormenting parents with 24/7 anxiety for three years about
whether their son is dead, and if alive in what condition?
Shalit is denied the rights of unfettered access to the
Red Cross and to sending and receiving monthly letters and cards while, by contrast, Palestinian prisoners in Israel enjoy
visitation rights, including conjugal visits, access to telephones, newspapers, television and radio broadcasts, lawyers'
visits and even academic studies at state expense.
Judge Goldstone, sir, I hope that you will find your way clear to
overcome the evident flaws in the Mission’s mandate and I wish you every success in conducting the impartial perceptive
investigation that you envisage and that it will indeed contribute towards a peaceful solution to the tragic conflict raging
in this region.
I will be grateful if you will kindly forward a copy of this email to the other members of the
Your considered response will be very much appreciated.
Near verbatim transcript
of press conference in Geneva
re Human Rights Council fact-finding mission on Gaza
(Note relevant paragraphs
highlighted in light blue)
Thursday, 16 April 2009 12:50 Added by PT Editor Sameh
Palestine, April 16th, 2009, (Pal Telegraph) - Near verbatim
transcript of press conference by the President of the Human Rights Council, Martin Ihoeghian Uhomoibhi (Nigeria) and Justice
Richard J. Goldstone on the announcement of the Human Rights Council fact-finding mission on the conflict in the Gaza Strip
Amb. Uhomoibhi: I am deeply honored to be sitting here with Justice Richard J. Goldstone; a man with a
very distinguished career in promoting and defending human rights; and a man who you know well. Justice Goldstone is an internationally
respected academic and the former Chief Prosecutor of the United Nations’ International Criminal Tribunal of Former
Yugoslavia and Rwanda. I have decided to appoint Justice Goldstone to lead the fact-finding mission called for by the Human
Rights Council, in its Resolution S/9-1 adopted at the 9th special session held in January this year.
In addition, I have appointed three experts to complete the
team, who, with the support of staff members of the Office of the High Commissioner for Human Rights, will undertake to provide
much needed clarity about the legality of the thousands of deaths and injuries and widespread destruction that occurred in
the context of the conflict in the Gaza Strip between December and January this year.
Joining Justice Goldstone will be Professor Christine Chinkin
of the London School of Economics and Political Science at the University of London, who you know well in her former capacity
as member of the high-level fact-finding mission to Beit Hanoun headed by Archbishop Desmond Tutu; Hina Jilani, another familiar
face, who has served as Special Representative of the Secretary-General on human rights defenders and currently Advocate of
the Supreme Court of Pakistan; and Colonel Desmond Travers of Ireland who’s had a career spanning over 40 years on various
issues related to UN and EU peace support missions. Colonel Travers has had extensive experience in conducting investigations
into violations of international humanitarian law and is a member of the Board of Directors of the Institute for International
Criminal Investigations based in The Hague.
Assembling this team has taken a bit of time. We wanted to make
sure that the team we are putting in place was credible, of high calibre, and truly independent. We wanted to be sure that
they understood the context of their work and that they are broadly representative and sensitive to the issues to be addressed
by their mission. Now that we have a team, I am very confident that they will be able to assess all human rights situations
and violations in the context of the conflict without distinction of any kind and in an impartial and objective manner.
The establishment of this mission is an important sign to the
victims on the ground - the thousands of innocent civilians, particularly women, children and the elderly, who bore the brunt
of that conflict. It provides an opportunity to deliver justice to the victims of the awful tragedy and to hold all those
responsible accountable for their actions. I am confident that Justice Goldstone and his capable team will rise to this important
I would now like to invite the Justice to say a few words.
Goldstone: Thank you very much Mr. President. I am very grateful for your warm words of welcome and also to the
care and though that’s been given to setting up an impressive team; I look forward to working with them in the coming
weeks. I am already on public record as having expressed my deep concern for the heavy loss of innocent lives in Gaza and
Israel. There are substantial allegations of war crimes and serious violations of international human rights law having been
committed before, during and after the military operations in Gaza between 27 December 2008 and 18 January 2009. It is in
the interest of all Israelis and Palestinians that the facts relevant to those allegations should be impartially investigated
by an independent international mission. The findings of such a mission might be relevant in relation to possible domestic
inquiries and domestic criminal or civil proceedings, and international accountability mechanisms.
As the leader of the Fact Finding Mission, I would request the
cooperation of the relevant authorities to enable the members of the Mission to visit and meet with victims both in Israel
and in Gaza and in the Occupied Territories to examine the context and consequences of military actions in Gaza. It is my
earnest wish that all relevant parties and administrations assist and cooperate with the Mission. I need hardly add that submissions,
whether of fact or law, would be sought by the Mission from all relevant persons and will be taken into account by the Mission
in the formulation of its report and its recommendations. It is my hope that such a report will make a meaningful contribution
to the peace process in the Middle East and to delivering justice to the victims.
Q: Will your mission include visits to Israel and will it investigate possible human rights
violations in Israel, or will the mission be solely related to the territory of Gaza?
No. As I think is indicated in the statement which I’ve just made, the mission will have regard to all
human rights violations and international humanitarian law rights violations committed both in Israel and in Gaza and in the
Occupied Territory. I should make it very clear that as far as I am concerned the invitation I received from the President
makes it very clear this is to be an independent, evenhanded and unbiased investigation.
If I may follow up, why are you making a distinction between Gaza and the Occupied Territory?
This was included in the invitation. Obviously, the mission, as I understand it, will have the right to determine its own
terms of reference, and clearly it will have to limit the remit of the investigation to deal primarily with the events prior,
during and subsequent to the Gaza military operation.
Q: On the same issue, because your answer is not quite clear. I was wondering whether the
scope of the mission had been widened in terms of the scope of the resolution, because both you and the President of the Council
insist on all violations, which means what my colleague said…
Justice Goldstone: As
far as I am concerned, the mission will be guided by the invitation which I received from the President. I think that any question in relation to the relationship between that and the resolution of the Human Rights Council
is a matter I would prefer the President to deal with.
Uhomoibhi: Let me aver to the questions you have just raised.
There is a mandate, if you look at OP 14 [operative paragraph 14 of HRC resolution S/9-1], that spells out the mandate.
But that mandate also mandates me to establish a fact-finding mission. Now, what I have done is establish a fact-finding mission
and request for the most appropriate manner, in my view, of dealing with the mandate of the Council. The ultimate purpose
of the Council will not be served if that mandate does not allow for the clear establishment of an independent and impartial
fact-finding mission; a mission that will gain the credibility of all sides, and that will be truly independent, and will
produce and report that is fair, that is balanced and that is impartial; that will address the question of proportionality.
You cannot address proportionality in a vacuum. On the basis of my own understanding, and in implementing the Council resolution
and of advancing the process, I requested the distinguished Justice to proceed along those lines. So, the object of it [the
mission], and I believe the object of the Council, is to have a report that truly reflects the events on the ground, and that
includes dealing with all violations in an impartial and objective manner.
Q: I wonder, Justice
Goldstone, if you could tell us whether you have had any preliminary contacts with the Israeli mission here or Israeli officials
and whether they have indicated to what extent they are prepared to cooperate and give access. And about following up to Richard
Falk’s [Special Rapporteur on the situation of human rights in the Occupied Palestinian Territory] report to the Council
in early March, he pointed to possible war crimes and crimes against humanity and suggested that it might be appropriate as
Israel had not signed the Rome Statutes to have an ad hoc criminal tribunal. Without pre-judging the outcome of your investigation,
would you see that proposal as being within the scope of your mandate?
Justice Goldstone: On
the first of your two questions, I have requested a meeting with the Israeli Ambassador in Geneva; I similarly requested a
meeting with the Palestinian Ambassador. I met a few minutes ago with the Palestinian Ambassador and I am happy to report
that he has extended full cooperation to the mission. The meeting with the Israeli Ambassador has not taken place. I have
requested it and I am hopeful that will happen. I have also indicated to both Ambassadors, to the Palestinian Ambassador and
in writing to the Israeli Ambassador, that I would be anxious to meet with any relevant officials, not only here in Geneva,
but also in Jerusalem and in Ramallah.
On your second question, obviously I have read Richard Falk’s
report. Really I do not want to comment as our mission members have not yet met. That will take place, I hope, in the coming
few weeks. I don’t want to anticipate any decisions that may be taken by the mission; I don’t want to anticipate
its terms of reference. But certainly I want to give the assurances that all relevant factors, reports, suggestions, recommendations,
and obviously including that and the Falk report will be taken into account.
Q: Justice Goldstone,
correct me if I am wrong but you are from Jewish background?
Justice Goldstone: Yes.
What does it mean for you personally from your background to now be heading a UN investigation of a conflict related to Israel,
a Jewish State? How do you feel about that, is it something you would have ever expected?
Well it certainly came to me as quite a shock as a Jew to be invited by the President to head this mission. It
is obviously an additional dimension. I’ve taken a deep interest in Israel in what happens in Israel and I have been
associated with organizations that have worked in Israel. But having said that, I believe I can approach the daunting task
that I have accepted to in an evenhanded and impartial manner and give it the same attention I have to situations in my own
country where, perhaps, similar considerations may have been taken into account.
I wanted to add something to that and to thank you for your question. In my consideration, there are no Jews or gentiles.
We are all working for the same purpose of human rights. Justice Goldstone’s pedigree is very distinguished, from his
anti-Apartheid struggles and for all that he has stood both at the International Criminal Courts on Rwanda and former Yugoslavia.
I have great confidence in his integrity and in his capacity to deliver the terms of his mandate.
a follow up and footnote – what did you accept to be the leader of the mission and when will you go to Gaza, approximately?
Goldstone: Let me deal with the second questions first, as I said, the mission hasn’t yet met. I haven’t
personally met all the members of the mission. I have contacted them by telephone and by email, but the programme of the mission
will be determined when we meet in Geneva in a few weeks’ time. So I cannot answer any questions as to a time-line.
As to why I accepted the invitation from the Ambassador, let me assure you it was not an easy decision. It took many days
and some sleepless nights in mulling the invitation, but I decided to accept it because of my deep concern for peace in the
Middle East, and my deep concern for victims in all sides in the Middle East. I think it is very important…too often
the victims are left off the agenda and in my view they should be on top of the agenda. It’s certainly my hope that
I can make a contribution in that regard. For those reasons I decided that it was my duty, and my privilege, to accept the
invitation from the President.
Q: Mr. President, do you have any guarantees from Israel that
what happened to Mr. Falk in Tel Aviv airport will not happen to the mission? And for Mr. Goldstone, if this did happen, what
would your reaction be?
Amb. Uhomoibhi: Of course, as you know there is a new government in
Israel in place at this time and this announcement is taking place this morning. I would expect, and it is my hope, that the
government would cooperate fully with the fact-finding mission. And ditto for the Palestinian side, that they would also cooperate.
At this point I do really want all sides to think about the ordinary people in these countries - the civilians, the people
who bear the greatest brunt when these conflicts erupt…and not about the interests of the politicians in this matter.
I am not saying that this is not important. But let us move forward. My hope is that all sides will recognize the challenge
before us and the need to do something about it. This is my hope and I am optimistic and hopeful that the new Israeli Government
will cooperate with this fact-finding mission.
Justice Goldstone: That is my hope too. And
I am proceeding on the assumption, I hope not a na´ve one, that there will be cooperation from all the major parties and I
really don’t want to anticipate problems that I hope won’t arise.
Q: Justice Goldstone,
you said you have not set your terms of reference, but one member of your team is a military expert. How much will the examination
of the indiscriminate use of weapons’ systems be part of your investigation, and is this breaking new ground or have
we seen this before in such investigations?
Justice Goldstone: Certainly, I am very grateful
for the President for having given me, as a member of the mission, a very experienced military man from Ireland. That is,
of course, crucially important, because we will be looking into, I have no doubt, all serious violations of international
humanitarian law. Earlier the President raised the question of proportionality. While I have developed some expertise in international
humanitarian law and international human rights law, I will be dependent, very heavily, and I am sure the other mission members
will be too, on appropriate advice with regard to the military aspects. I think the issues here are instincts and actions
taken, not only during but before and after the military operations. It is in that area that it is crucially important to
have appropriate input from people with military experience.
Q: I know you said you don’t
want to anticipate trouble and I hope you don’t have any, but if you are unable to go into Gaza will the mission then
be aborted or will you approach it from a different aspect as has been done with other missions where people from outside
the area have been interviewed…and do you think that if Israel indeed refuses to cooperate with you that it will be
doing itself a disservice?
Justice Goldstone: On your second question, I have no doubt that
it is in the interests of all parties to cooperate. As I said, and as the President has said, it is in the interests of victims.
It has certainly been my experience in South Africa, in the Balkans and Rwanda that transparent, public investigations are
very important; important particularly to the victims because it brings acknowledgment of what happened to them and it can
be the beginning of a healing process. So, I have no doubt it is in their interests. I would hope it is in the interests of
all the governmental authorities too to really be on the moral high ground in cooperating with what I hope will be seen as
a substantial, if not a important, United Nations endeavor to be of assistance. What will happen if there isn’t cooperation
from all parties I think is a matter the mission will have to take into account if that happens. I can’t emphasize strongly
enough that it is my hope and wish we won’t come to that path.
Q: The Israelis mounted
an internal investigation based on alleged atrocities committed by some of its soldiers in Gaza and it essentially gave it
a white wash and said it didn’t happen. What is your reaction to this investigation?
I really rather pass on that one. I haven’t seen the report. I have read newspaper articles on it. But
obviously those allegations, it seems to me are material and must be taken into account by the mission.
When would you expect to submit a report to the Council, you said there was no exact time line, but would you expect to submit
it to the Council by June or is it a longer process?
Justice Goldstone: My understanding is
that the anticipation from the President and from the Council is that the report should be within three months, and that seems
to me to be a reasonable period of time and certainly it is my intention to keep to that time line.
said you accepted this mission because of your concern for the peace in the Middle East. As you know this is not the first
mission to go to Israel, and [those] didn’t really help the peace in the Middle East. Are you disappointed…that
this mission won’t really add anything to the Middle East peace?
Justice Goldstone: This
is a new mission dealing with factors which haven’t been looked at by an international fact-finding mission. There have
been non-governmental investigations. It seems to me there is a huge expectation generally in many parts of the global community,
but particularly in the Middle East, that there should be an international, independent investigation. I don’t think
this in any way is doing something that has been done before.
Q: I’m sorry, but they
failed, all the missions before, this is not the first mission. They failed to change the situation there. What tells you
that you are going to change things with this mission, with this report? It will be on the shelf anyway, this report, nobody
will read it; it won’t be helpful for the victims. Why do you think your mission will be different?
Uhomoibhi: I think Justice Goldstone has said what he wants to say. My own attitude is that we are optimists,
we believe in the work we are doing. We believe that this does add value. We cannot at this point in time judge the outcome
of our work even before the work is done. We must rise above prejudice; we must rise above certain things which have kept
us to where we are today. I don’t want us to look at this form a very pessimistic point of view. We are optimistic,
we think there is great merit in this enterprise and we count on the support of all, especially the media, to help us achieve
success, including the people of Israel and Palestine; all the people who suffered from this conflict desire and yearn for.
Q: Justice Goldstone, besides visiting the region are you free within your terms of reference
to follow up and collect independent testimony from experts or people who were present on the ground from other parts of the
world, including NGOs, UN officials, diplomats…In other words, you are not restrained in what you can cover, correct?
Goldstone: It is my attitude and I am confident it will be shared by the other three members of the mission that
we should seek information and evidence form all relevant parties, and perhaps particularly from NGOs, particularly from people
on the ground. Certainly I wouldn’t exclude any advice. I think we will also be welcoming submissions on fact and law
from governments, from NGOs, from experts we might approach or who, frankly, who might approach us.
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