Identification and comparison of methodological approaches in two fact-finding mission reports
Dmytro Tupchiienko, Institute of Criminology, University of Cambridge (UK)
A UN fact-finding mission, headed by Judge Richard Goldstone, was established in April 2009 with the aim “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.” (Guardian, 2009).
The Independent Civil Society Mission to Libya was established by the Arab Organization for Human Rights (AOHR), in cooperation with the Palestinian Centre for Human Rights (PCHR). The Mission was established in response to allegations of widespread violations of international law, including international human rights law, international humanitarian law, and international criminal law, committed in Libya since 15 February 2011, and in light of the State’s current transition away from authoritarian rule (Pchrgaza, 2012).
The analytical objectives and goals of in two fact-finding mission reports: Goldstone Report and Libya FFM-Report were to garner relevant and adequate data in situations of violations of human rights and to provide an insight into the nature of the human rights-related issues in order to investigate alleged violations of international law and highlight attention to unlawful incidents. Evidence gathered can help to assess appropriate post-conflict accountability and reconciliation measures. These mechanisms also can serve a preventive function by drawing attention to and verifying cases of abuses, thereby increasing pressure on government actors to stop committing crimes. International law is meant to protect all people and put the international community’s commitment in question to peace and human rights.
Methodology and consept
The normative framework adopted by both Missions was international humanitarian law, international human rights law, and international criminal law.
Libya FFM report was based on an independent and impartial analysis of all parties’ compliance with their obligations under international human rights law and international humanitarian law. All conclusions whish were made by members of the commission were based on first- hand gathered information. Secondary sources were used to corroborate findings, and as supporting evidence indicating potential patterns of behaviour. Libya Mission adopted an inclusive approach to gathering information and seeking views. Information gathering methods included: interviews with victims, witnesses, and other individuals with relevant information; site visits to specific locations where violations of international law were reported as having occurred; meetings with a variety of interlocutors; and a review of public information, including UN and NGO reports, related to the conflict (Pchrgaza, 2012).
Goldstone mission based its work on analysis of compliance by the parties with their obligations under international human rights and humanitarian law in the context of the recent conflict in Gaza, and on international investigative standards developed by the United Nations. The Mission adopted an inclusive approach in gathering information and seeking views. Information-gathering methods included:
(a) the review of reports from different sources;
(b) interviews with victims, witnesses and other persons having relevant information);
(c) site visits to specific locations in Gaza where incidents had occurred;
(d) the analysis of video and photographic images, including satellite imagery;
(e) the review of medical reports about injuries to victims;
(f) the forensic analysis of weapons and ammunition remnants collected at incident sites;
(g) meetings with a variety of interlocutors;
(h) invitations to provide information relating to the Mission’s investigation requirements;
(i) the wide circulation of a public call for written submissions;
(j) public hearings in Gaza and in Geneva (Guardian, 2009).
The Goldstone Mission conducted 188 individual interviews. It reviewed more than 300 reports, submissions and other documentation either researched of its own motion, received in reply to its call for submissions and notes verbales or provided during meetings or otherwise, amounting to more than 10,000 pages, over 30 videos and 1,200 photographs.
In order to provide the parties concerned with an opportunity to submit additional relevant information and express their position and respond to allegations, the Mission also submitted comprehensive lists of questions to the Government of Israel, the Palestinian Authority and the Gaza authorities in advance of completing its analysis and findings. The Mission received replies from the Palestinian Authority and the Gaza authorities but not from Israel.
The Mission’s investigation in Libya revealed significant evidence concerning possible violations of international law: war crimes and possibly crimes against humanity. The Mission reiterates finding the local and national courts in Libya were not functioning. The rule of law, and respect for human rights, must be re-established. Public scrutiny, or public awareness, is an essential component of this process.
The Goldstone report accused Israel of violating international humanitarian law, human rights, and the blockade of the Gaza defined as a tactic of collective punishment prohibited by the Geneva Convention. The Goldstone Mission finds that in a number of cases Israel failed to take feasible precautions required by customary law, that the different kinds of warnings issued by Israel in Gaza cannot be considered as sufficiently effective. The Mission found numerous instances of deliberate attacks on civilians and civilian objects. The weapons used by the Israeli armed forces during military operations the Mission accepts that white phosphorous, flechettes and heavy metal (such as tungsten) what is not currently proscribed under international law. The Mission investigated several incidents in which Israeli armed forces used local Palestinian residents to enter houses which might be booby trapped or harbour enemy combatants. The Mission found that the following breaches: wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly.
Validity, weaknesses and deficiencies
Most of the criticism and praise of the Goldstone report has been based on its highly publicized and controversial conclusions that the purpose of the operation must have been to kill civilians, not combatants (Jpost, 2010).
More, the Commission relied extensively on mediating agencies, especially UN and NGOs, which have a documented hostility to Israel. The report contains numerous gratuitous digressions into issues beyond the purview of a fact-finding commission that are inaccurate and profoundly hostile to Israel and Jews (Goldstonereport, 2010).
What is even more telling than its erroneous conclusions, however, is its deliberately skewed methodology, particularly the manner in which it used and evaluated similar evidence very differently, depending on whether it favored the Hamas or Israeli side (Jpost, 2010).
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 conclusion, 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 (israel-palestina.info, 2010).
There was no effort is made to evaluate the credibility of these allegations. The sole function is to gather the accusations and make them public so that the other side can respond. To conduct such an evidence-gathering investigation requires that the investigators have the trust of those who they are interviewing. It also requires a degree of neutrality in making certain that a fair sampling of accusations is gathered and that the information is not skewed in one way or another (bulk.resource, 2010).
To assess the credibility of those making the accusations it is requires cross examination of the accusers and subjecting the accusations to crosschecking against other evidence. It also requires that those evaluating credibility be absolutely neutral and objective and have no predisposition to believing one side over the other (ngo-monitor, 2010).
To gather evidence of the intentions of the various actors. This is an extremely difficult task that requires access to statements both public and private of both sides. This function does not require assessment of credibility of the evidence but rather merely its gathering to present publicly so that the other side can respond.
Had the Goldstone report limited itself to the first function—gathering testimony and physical evidence of the actions of both sides without assessing credibility—it would have performed a useful function. The factual allegations in the report include serious charges against both sides that require serious investigations and responses.
The report goes well beyond simply gathering testimonies. It purports to assess credibility, determine intentions and arrive at both legal and political conclusions. The members of this commission not only lack the expertise to engage in these latter assessments, but even more important they lack the neutrality and objectivity. As Goldstone himself has acknowledged, if this were a court of law, “there would have been nothing proven,” and at least one of its members would have been disqualified as a result of pre-existing bias (Jpost, 2010).
The report, is one-sided and wrong in its fundamental conclusions. The methodology employed in this report is fundamentally flawed.
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