Palestine Recognized - United Nations Delegitimized

[Published 14 April 2011]


Any decision by the United Nations General Assembly to recognize a Palestinian State next September could signal the beginning of the end for the United Nations as a credible organization pledged to uphold the rule of international law in dealings with - and between - member states.

Its current reputation for doing so is under real threat even now - as calls for it to withdraw further consideration of the flawed Goldstone Report are being made following Justice Goldstone’s recent admission that the Report wrongly alleged that Israel had deliberately targeted Gaza’s civilian population during its invasion of Gaza in December 2008.

Goldstone’s Report had been tainted and compromised from the outset because all four Commissioners appointed by the UN Human Rights Council were biased - and in accordance with well established legal principles should have recused themselves from taking part in the Inquiry.

Failing to initially reject any consideration of this biased Report has now landed the General Assembly in its present predicament. Continuing to consider the Goldstone Report will indicate the General Assembly is prepared to ignore the law where it conflicts with a particular political objective. This is a recipe for disaster and inevitably must lead to the total loss of any credibility.

Should the United Nations actively attempt to do another “Goldstone” - by acting in defiance of a well established body of international law - then it could well end up imploding like its predecessor - the League of Nations.

Israel’s President - Shimon Peres - warned this week that whilst Israel believes in a two-state solution - it must be negotiated between Israel and the Palestinians, not imposed by the international community.

Failure of the General Assembly to heed this message - by ignoring international law - can only lay the groundwork for another war

Vesting Arab sovereignty for the first time ever in recorded history in the whole or any part of the West Bank, East Jerusalem and Gaza - can realistically only happen in direct negotiations to which Israel is a party. Other alternatives to the creation of a new Arab State may have to be considered and negotiated if this currently preferred option cannot be realised.

The UN Documentation Search Guide sets out the following UN objective:

“International law is a primary concern of the United Nations. The mandate for the activities in this field emanates from the Charter of the United Nations which, in its Preamble, sets the goal “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.

International law specifically dealing with Palestine that must be respected and upheld by the United Nations includes:

1. The Versailles Peace Conference 1919
2. The San Remo Conference 1920
3. The Treaty of Sevres 1920
4. The Mandate for Palestine 1922
5. Article 80 of the UN Charter 1945
6. Security Council Resolution 242 (1967)

This body of law conclusively establishes that:

1. the Jewish National Home is to be reconstituted in Palestine within secure and recognized boundaries - without prejudice to the civil and religious rights of the existing non-Jewish communities
2. close settlement by Jews is to be encouraged on the land within such determined boundaries including State lands and waste lands not required for public purposes

Any attempt to now deny the Jewish people these vested legal rights - without Israel’s agreement - will indeed be an exercise in futility.

Additionally the provisions of customary international law embodied in the Montevideo Convention 1933 sets out in Article 1 four criteria for statehood :

1. a permanent population;
2. defined territory;
3. government; and
4. capacity to enter into relations with the other states.

Short of a miracle occurring before September - there will not be:

1. any single Arab Government in control of all of the West Bank, East Jerusalem and Gaza - reputedly the territory designated to be the subject of the proposed General Assembly resolution
2. any permanent population in the designated territory over which any Arab declarant could claim to exercise control
3. any ability by any Arab government in those areas to enter into relations with other states and honour commitments made with those states.

As it did in 1947 - the General Assembly could examine the current situation and make its own recommendations to the parties. But these would be recommendations only - requiring the consent of both parties before they could be implemented.

Entertaining any other attempt to bring the matter to the General Assembly would undermine and could lead to the repudiation of:

1. the Oslo Accords - whose status even now is very questionable and
2. the Roadmap - to which the United Nations is committed to implementing as part of the four member Quartet comprising itself, the United States, the European Union and Russia
3. Changed circumstances on the ground since such a State was first proposed by the Peel Commission in 1937 and by the United Nations in 1947 make the possibility of the creation of such a State now only possible to achieve in direct negotiations with Israel.

The opportunity that existed between 1948-1967 to unilaterally create such a State with the stroke of an Arab League pen - when all Jews living in the West Bank, East Jerusalem and Gaza had been expelled by seven invading Arab Armies - is no longer available.

The reputation and integrity of the United Nations is at stake if efforts continue to procure the passage of a resolution to recognize a Palestinian State by the General Assembly in September.

America has already issued a precautionary warning against such action.

White House Middle East advisor Dennis Ross said this week:

“We have consistently made it clear that the way to produce a Palestinian state is through negotiations, not through unilateral declarations, not through going to the UN. Our position on that has been consistent in opposition.”

UN Secretary General Ban-Ki moon - and the General Assembly - would do well to heed this warning before embarking on this pointless journey to nowhere.

Goldstone Gazumped On Gaza

[Published 5 April 2011]


Richard Goldstone now faces bitter condemnation from Israel following his belated admission that his infamous Report was wrong in finding that Israel had intentionally targeted civilians during its invasion of Gaza in December 2008.

Goldstone has now attempted to lay the blame for this gross and defamatory libel at Israel’s feet for refusing to give evidence before his Inquiry - a kangaroo court and a UN sanctioned set-up in every sense. This claim is as outrageous as his earlier flawed findings.

Goldstone has belatedly confessed that the initial mandate given to him by the UN Human Rights Commission was “skewed” and was changed at his insistence. He goes even further in now stating:

“ I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.”

But Goldstone still remains silent on his own bias and that of the other three members of his Tribunal - Hila Jalani, Desmond Travers and Christine Chinkin

The Hon. Sir Gerard Brennan AC KBE in evidence given to the Australian Senate on 10 August 2007 best sums up the role judges must assume and be seen to assume:

“There are qualities of character and disposition to be desired in all judges. The supreme judicial virtue is impartiality. Both partiality and the appearance of partiality are incompatible with the proper exercise of judicial authority. The one poisons the stream of justice at its source; the other dries it up”

Before their appointment as Commissioners by the President of the UN Human Rights Council on 3 April 2009 - Richard Goldstone, Hila Jalani and Desmond Travers were among 16 signatories who had signed an open letter to the United Nations Secretary General Ban Ki Moon and the Security Council Ambassadors on 16 March 2009 in which they stated:

“As individuals with direct experience of international justice and reconciliation of conflict, we believe there is an important case to be made for an international investigation of gross violations of the laws of war, committed by all parties to the Gaza conflict.

Without setting the record straight in a credible and impartial manner, it will be difficult for those communities that have borne the heavy cost of violence to move beyond the terrible aftermath of conflict and help build a better peace.

A prompt, independent and impartial investigation would provide a public record of gross violations of international humanitarian law committed and provide recommendations on how those responsible for crimes should be held to account.”

The words “credible”, “impartial“, and “independent” feature prominently in this part of the statement.

Not content however with stressing the nature of the investigation they desired - the signatories went on to declare:

“We urge world leaders to send an unfaltering signal that the targeting of civilians during conflict is unacceptable by any party on any count. We call on them to support the establishment of a United Nations commission of inquiry into the Gaza conflict. The commission should have the greatest possible expertise and authority and: a mandate to carry out a prompt, thorough, independent and impartial investigation of all allegations of serious violations of international humanitarian law committed by all parties to the conflict”

Again the signatories stressed the commission of inquiry was to be “impartial” - yet they had already concluded there had been targeting of civilians.

The letter continued :

“The events in Gaza have shocked us to the core.”

Surely given the public display of their feelings - and the conclusions they had already publicly drawn - the appointment of these three signatories to the Commission should never have been made.

But there is more that can be gleaned when one looks at their qualifications as set out in that letter.

Desmond Travers disclosed he was currently a Director at the Institute for International Criminal Investigations (IICI). Hila Jalani failed to mention she was also a director at the same Institute. Richard Goldstone did not mention that he was on the Council of Advisors of the same Institute.

Perhaps this failure of disclosure of association could be explained as an oversight by one or other of them in failing to reveal their close professional and working relationship, their ability to influence each other or even have a common mindset devoid of any of them exercising their own independent judgement.

However when one looks at the United Nations Press Release dated 3 April 2009, more detailed curricula vitae of these three Commissioners are given - but again their common identification with the IICI is not disclosed.

Additionally Richard Goldstone is disclosed as having been a Governor of the Hebrew University of Jerusalem. Surely he should have disqualified himself on that fact alone. But he didn’t. He said he was ‘‘shocked, as a Jew,’’ to be invited to head the mission.

‘‘It adds an additional dimension .I’ve taken a deep interest in what happens in Israel. I’m associated with organizations that have worked in Israel. And I believe I can approach the daunting task that I have accepted in an even handed and impartial manner.’‘

Goldstone apparently believed he could be even handed and impartial, But that is not the test. Any semblance of partiality should have resulted in his disqualification.

Chinkin had similarly placed herself in a position of conflict by signing a letter which appeared in The Times on 11 January 2009 stating:

“Israel’s bombardment of Gaza is not self-defence - it’s a war crime.”

In addition, the letter continued:

“The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence…Israel’s actions amount to aggression, not self-defence”.

All four Commissioners should have recused themselves from sitting. They all share responsibility for the enormous harm suffered by Israel as a result of their refusal to do so.

The decent and fair thing for them all to do now would be to formally advise the Human Rights Council to tear up their Report and for all UN proceedings discussing the Report to be expunged from the UN records.

Israel Over The Moon With Ban-Ki

[Published 3 August 2010]


Israel is to be applauded for its agreement to participate in the Inquiry announced yesterday by UN Secretary-General Ban-Ki moon into the aborted attempt on 31 May by a flotilla of six ships to break the naval blockade imposed by Israel on the entry of goods and supplies into Gaza.

This Inquiry - first mooted in a statement by the UN Security Council on 1 June - called for :

” a prompt, impartial, credible and transparent investigation conforming to international standards"

The attempt by another United Nations organ - the Human Rights Council (UNHRC) - to hijack such an investigation and inflict as much political damage as it could on Israel has now been effectively terminated by the Secretary-General’s announcement.

The UNHRC on 23 June had indicated it would be initiating an investigation - which promised to be biased and far from independent - one that Israel could not possibly co-operate with.

The UNHRC had already prejudged the issues as was clearly evident in the terms of the resolution that it passed:

“to dispatch an independent, international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance;"

Any idea that there might not have been any violations of international law or that the ships might not have been carrying only humanitarian assistance had already been predetermined by the UNHRC in this blatantly worded resolution.

Israel had been effectively hung drawn and quartered by the UNHRC before the members of its Inquiry had even been named.

So far as the UNHRC was concerned it had:

(i) Condemned in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships, which resulted in the killing and injuring of many innocent civilians from different countries;
(ii) Deeply deplored the loss of life of innocent civilians, and expresses its deepest sympathy and condolences to the victims and their families;
(iii) Called upon the occupying Power, Israel, to immediately lift the siege on occupied Gaza and other occupied territories;

without hearing one word from Israel.

This identical pattern of prejudging Israel had been established by the UNHRC when appointing the Goldstone Inquiry into Israel’s invasion of Gaza in December 2008. Israel had no option but to then refuse becoming a sacrificial lamb in such an Inquiry whose outcome had been pre-determined before the Commission had even begun its work and whose Commissioners were totally conflicted by statements they had made before their appointment. Any hope of Israel getting a fair hearing were doomed from the outset.

The UN has proved far more circumspect on this latest occasion and the UNHRC has been sent packing.

Israel’s agreement to now participate in the Secretary-General’s Inquiry - to be co-chaired by New Zealand’s Sir Geoffrey Palmer and Columbia’s Alvaro Uriba with the addition of one representative from Israel and one from Turkey - promises to provide a fair and transparent setting for the determination of the events that lead to the blockade being instituted, the attempts to undermine it and the tragic consequences that followed.

Issues such as the legality of the blockade and its enforcement, provocation, the use of force, disproportionate use of force and acting in self defence will be examined and appropriate judgements made.

The terms of reference are still to be finalised but Sir Jeffrey Palmer has charted an optimistic course stating:

“I can’t say anything of substance on the details of this inquiry or indeed its procedures until I’ve been to New York and discussed the issues with both the Secretary General [Ban Ki-moon] and my colleagues on the inquiry… This is a very sensitive matter. It’s a quasi-judicial inquiry, so it is really very important to maintain a sense of detachment”

Hopefully the details and procedures when released will prove to be fair and balanced and enable Israel and Turkey to appoint representatives to the Committee and allow its deliberations to proceed in an atmosphere of calm. The Inquiry should certainly serve to ease tensions between Israel and Turkey.

Hopes are high that the UN might at last have hit on a path to reducing conflict that will see the last of any flawed and unreliable inquiries such as that conducted by Goldstone.

Israel’s Prime Minister Netanyahu has said - following the announcement of the Inquiry:

“Israel has nothing to hide. Quite the opposite: The State of Israel’s national interest is to ensure that the factual truth on the entire raid incident will be known to the world”

Israel’s President - Shimon Peres - is confident Israel will be exonerated.

In an interview with Benny Morris published on 26 July Peres was asked and responded to the following questions:

“Q: About the Turkish flotilla, do you think we acted correctly?

A: We acted correctly, except in terms of explaining what happened.

Q: We killed nine Turks, they killed no Israelis.

A: There were six boats. Only on one — where they came prepared for violence — was there a clash. There was a long delay in broadcasting our explanation. There is no starvation in Gaza and no siege. If Gaza would agree not to rocket us, we would leave the entry points open.

Q: But we prevented items like cardamom from reaching Gaza.

A: OK, we made some mistakes. [But] we made another mistake—we restrained ourselves for eight years and allowed them to shoot thousands of rockets at us until the rage came out at one go [in the IDF assault on Hamas in Gaza in 2008-2009]. Had we done then what we do now, retaliate each time they fire a rocket — there would have been no problem. In the end, it turned out that restraint was a mistake"

Israel will now be given the chance of fully explaining what happened in a forum that will hopefully act responsibly and carefully without resort to reliance on innuendo and unsubstantiated allegations.

The precedent created by this Inquiry could lead to the UN undertaking similar inquiries into future international incidents between conflicting antagonists.

It serves to end the political grandstanding and double standards of organizations such as the UNHRC and the Arab League - whose member countries include some of the worst abusers of human rights and violators of international law among the international community.

Gaza,Goldstone and Gallstones

[Published September 2009]

From a legal perspective Israel is not subject to the jurisdiction of the International Criminal Court nor do the provisions of the Geneva Convention apply to Gaza since it is not part of the territory of any state signatory - called a “High Contracting Party” - to the Convention.

Gaza still is “no mans’ land” under international law where sovereignty is yet to be decided.

It should be remembered that Israel officially only evacuated Gaza in 2005. It has not ceded any claim to Gaza or parts of Gaza under the rights conferred on the Jewish people pursuant to the Mandate for Palestine and article 80 of the United Nations Charter to reconstitute the Jewish National Home in any part of that territory.

Israel had the inherent right of self defence under Article 51 of the United Nations Charter if an armed attack was made on it. That it absorbed 7000 rocket and mortar attacks after evacuating Gaza in 2005 before undertaking the invasion of Gaza last December would not have been endured for such a lengthy period by any other member of the United Nations had they been the recipient of such a barrage of rockets and mortars indiscriminately fired into civilian population centres.

There may well be some rotten eggs in Israel’s basket. War is a great dehumanizer and soldiers can act in inhuman ways under the stress of war - and can be very trigger happy especially when the enemy you are confronting does not wear uniforms and hides among the civilian population.

Israel has and is still continuing its ongoing investigations into the invasion of Gaza and will no doubt bring to justice those whose conduct is found to be unacceptable. The Goldstone Commission’s dismissal of these investigations as “pusillanimous” is made without a scintilla of evidence in support.

The Report will be extensively used and quoted to beat Israel over the head in a multitude of UN forums and in the General Assembly as part of the campaign by the 56 members of the Organisation of the Islamic Conference to delegitimize Israel.

The Report will be used to support new calls for:

(i) economic and political boycotts of Israel
(ii) disinvestment in Israel and
(iii) for outlawing Israel as a pariah state in the international community

The Goldstone Commission came about as a result of a Mandate given to it by the UN Human Rights Council on 12 January 2009 by a vote of 33 to 1 with 13 abstensions. 15 of the 33 affirmative votes were from members of the Organization of the Islamic Conference and the remainder included countries with disgraceful human rights records like Angola, Cuba, China, Nigeria, the Russian Federation and Nicaragua.

The Commission was appointed on 3 April 2009 and its members comprised Richard Goldstone, Christine Chinkin, Hina Jalani and Desmond Travers.

Goldstone, Jalani and Travers had signed an open letter, published 16 March 2009, addressed to United Nations Secretary-General Ban Ki-moon and the United Nations Security Council Ambassadors. It stated:

“...we believe there is an important case to be made for an international investigation of gross violations of the laws of war, committed by all parties to the Gaza conflict…A prompt, independent and impartial investigation would provide a public record of gross violations of international humanitarian law committed and provide recommendations on how those responsible for crimes should be held to account…We urge world leaders to send an unfaltering signal that the targeting of civilians during conflict is unacceptable…The events in Gaza have shocked us to the core…We must also establish the truth about crimes perpetuated against civilians on both sides."

Christine Chinkin had signed a letter dated January 11, 2009, which appeared in The Times, stating:

“Israel’s bombardment of Gaza is not self-defence - it’s a war crime.”

In addition, the letter stated:

“The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence …Israel’s actions amount to aggression, not self-defence”.

All of the appointed Commissioners had therefore begun this inquiry with their minds made up. Israel was to be hung drawn and quartered. Any semblance of impartiality or lack of bias among the Commission members went out the window before the Commission had even started its proceedings. In failing to disqualify themselves they totally negated the validity of their findings.

Hamas violence against its own Gazan citizens during Israel’s invasion was apparently not deemed to be part of the Commission’s mandate.

A report prepared by Human Rights Watch dated 9 April 2009 alleged that during Israel‘s invasion:

“Hamas security forces or masked gunmen believed to be with Hamas extra-judicially executed 18 people, mainly those accused of collaborating with Israel. Masked gunmen also beat and maimed by shooting dozens of Hamas’s political opponents, especially members and supporters of its main political rival, Fatah.

The internal violence in Gaza has continued since Israel withdrew its forces. Palestinian human rights groups in Gaza have reported 14 more killings between January 18 and March 31, 2009.

So far, this violence has gone mostly unpunished. Despite promises to investigate unlawful killings and other abuses, Hamas authorities, to Human Rights Watch’s knowledge, have only investigated one alleged killing by members of their security forces or armed wing…

Hamas security forces have also used violence against known Fatah members, especially those who had worked in the Fatah-run security services of the Palestinian Authority (PA). Of particular concern is the widespread practice of maiming people by shooting them in the legs, which Hamas first used in June 2007, when it seized control inside Gaza from Fatah. According to the Independent Commission for Human Rights (ICHR), the human rights ombudsman organization of the Palestinian Authority, unidentified gunmen in masks deliberately inflicted bullet wounds to the legs of at least 49 people between December 28, 2008 and January 31, 2009. [http://www.hrw.org/sites/default/files/reports/iopt0409web.pdf]

The Goldstone Report will not have anything like the political affect that the infamous “Zionism is Racism” resolution had in the aftermath of its passing by the UN General Assembly on 10 November 1975 until it was subsequently revoked on 16 December 1991.

Israel’s then Ambassador to the United Nations - Chaim Herzog described that resolution in the following terms:

“For us, the Jewish people, this resolution based on hatred, falsehood and arrogance, is devoid of any moral or legal value. For us, the Jewish people, this is no more than a piece of paper and we shall treat it as such.”

Israel should adopt the same view in relation to the Goldstone Report.

Israel’s response should be to proceed apace to build up the state by the ingathering of Jews from around the world and to continue with its brilliant technological , medical and scientific successes, whilst holding its head high among the nations of the world as a true democracy among a sea of repressive and oppressive regimes. It should make sure that the security of its 7.5 million citizens (including 1.5 million Arabs) is guaranteed from anyone who would seek to attack it and ensure it maintains defensible borders to enable this to happen.

This is the best route for Israel to take to avoid any attack of gallstones caused by Goldstone and his kangaroo court.