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shira Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Aug-20-09 07:46 AM
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The Goldstone Mission - Tainted to the core (II)
n Mondays article, Prof. Cotler explained how the Goldstone Commission was tainted by the UN Human Rights Council resolution creating its mandate, as well as the predisposed views of some of its personnel. In the second part of his piece, he elaborates the systemic and systematic bias of the UN council itself, and the implications this bias has on the fact-finding mission and on the integrity of international law generally.

Disturbing as it may be, the failure to include a thorough review of Hamass continuous rocket attacks in the resolution establishing the Goldstone Commission - and to then staff the mission with a member who has already decided that such attacks do not alter Israels guilt - can be seen as evidence of the reductionist narrative that the UN Human Rights Council seeks to promulgate.

None of this is intended to suggest, nor would I wish to have it inferred, that Israel is somehow above the law, or that Israel is not to be held accountable for any violations of law. On the contrary, Israel is accountable for any violations of international law or human rights like any other state. The Jewish people are not entitled to any privileged protection or preference because of the particularity of Jewish suffering.

But the problem is not that Israel seeks to be above the law; it is that Israel has been systematically denied equality before the law in the international arena. The issue is not whether Israel must respect human rights, but that the human rights of Israel and its people have not been respected. The discrimination emerges not from suggesting that human rights standards should be applied to Israel - which they must be - but from the fact that these standards have not been applied equally to anyone else.

more...

http://www.jpost.com/servlet/Satellite?cid=124941864023...
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shira Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Aug-20-09 07:50 AM
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1. rest of article
IT IS on this basis that the Goldstone Commission should be opposed: not because it represents an objective inquiry into Israel - because independent and impartial inquiries should be welcomed by democracies - but precisely because it does not represent such an objective inquiry.

Consistently applying discriminatory standards has the effect not only of demonizing Israel, but of undermining the integrity of the UN and the edifice of international law. Decades from now, historians looking back at the meetings of the council will be led to believe that more Palestinians died at the hands of Israelis than Darfurians at the hands of Sudan; that discrimination was institutionalized in Israel to a larger extent than in apartheid South Africa; and that Israel - the lone democracy in the Middle East - was a greater threat to international peace and security than any other state since its inception.

But yet it was Hamas that fired deliberately on Israeli civilians. It was Hamas that boasted - only days before the conflict exploded in December - that Israel was "hopeless and desperate" when faced with its attacks. It was Hamas that promised to continue firing rockets, that painted Israel and Jews as the sons of apes and pigs and that called for their murder in its charter and publicly incited to their genocide.

Once the war began, it was Hamas that continued to target Israeli civilians - not infrequently but as part of a systematic, widespread attack. It was Hamas that chose to position its fighters in Palestinian civilian areas. It was Hamas that decided to misuse humanitarian symbols - such as using an ambulance to transport fighters - to launch attacks. It was Hamas that recruited children into armed conflict. These are all indisputable war crimes. Yet they do not find their way, at any point, into the resolution establishing the Goldstone Commission.


The missions mandate is tainted through more subtle ways of prejudging its conclusions as well. For instance, the councils enabling resolution refers to the Gaza as being "occupied Palestinian territory." Such a description is loaded, and ignores the reality on the ground - that Israel fully withdrew from Gaza years ago. Indeed, the territorys status under international law remains unclear. By adopting this vernacular, the council - and Goldstone himself, who uses a similar characterization - implicitly predetermines an essential part of its analysis. For under international law, what constitutes a legitimate response will be very different depending on whether rocket attacks are coming from territory a state "controls," or whether they are coming from territory that is controlled by the attacking terrorist government, as in the case of Hamas.

In the end, whatever bargain Goldstone personally struck about his mandate, and whatever intentions he has of examining both sides of the conflict, his work will nonetheless be regrettably tarnished by its connection to the UN Human Rights Council, and may well be manipulated to satisfy the councils ends.

AND THUS we are left with the reality that Judge Richard Goldstone, previously shocked to the core, has become the leader of a mission that is tainted to the core.

Goldstone has, to his credit, opened his commission - and listened - to the witness testimony of both Israelis and Palestinians. They heard eloquent words from, among others, Noam Schalit, whose son Gilad remains in Hamas captivity under conditions that plainly violate international law. Moreover, while many may welcome an ultimate finding from the inquiry that Hamas was guilty of human rights violations as well, such an outcome should not be considered enough.

The commissions report is not yet written, and I would not wish to prejudge its findings. Suffice it to note, however, that the legitimacy of the report cannot be determined solely based on whether Hamass heinous and significant crimes are revealed; the legitimacy of the report also rests - perhaps primarily - on the fairness of its findings with respect to Israel. And this fairness, in turn, is compromised not only by the tarnished mandate, but by the witness testimony and documentary evidence controlled by the Hamas terrorist government - while there is an absence of evidence from the Israeli government, which refused to cooperate with the mission to begin with.

Moreover, there is also a clear international legal asymmetry in the conflict between Israel and the terrorist group. This asymmetry exists not only in what lawyers call jus ad bellum - or the legal context of aggression and self-defense - but also in jus in bellum - the application of international human rights law to the combatants. With respect to Hamas, any attempt at "evenhandedness" will not do justice to this reality. Indeed, no analysis of the principle of proportionality can be undertaken without a keen understanding of intentionality. Accordingly, the commission should thus be singling out Hamass deliberate and unprovoked acts of war, as well as its avowed and publicly-declared intention to destroy Israel and kill as many of its citizens as possible. Such intentions on the part of Hamas need to be contrasted with Israels objective - to prevent and deter such armed attacks in order to better protect its innocent citizens.


THE PARADIGM of false moral equivalence not only wrongly puts Israel and Hamas on the same level, but it also undermines the importance of intentionality in international law.

For this reason, we should be looking for the Goldstone report not merely to observe that Hamas fired rockets at Israeli civilians while imperilling Palestinian civilians - a double war crime - but to look at this practice as the reason behind innocent Palestinian deaths. We should be looking for the Goldstone report not merely to mention Gilad Schalit in passing, but to look at his situation as a case study in Hamas terror and impunity.

In brief: We should be looking for the Goldstone report not just to mention Hamass violations of international law, but to identify them as the root cause of the Gaza conflict. Simply put, if there had been no Hamas war crimes, there would have been no need for an Israeli response.

As the Goldstone inquiry is currently set up, however, expecting such an analysis to emerge clearly from its final report is likely unduly optimistic. The tarnish of the UN Human Rights Council, the enabling resolution it drafted, the personnel it grouped together, and the legal asymmetry cannot be so easily redressed. Indeed, between Goldstone - a renowned Jewish jurist who played right into the hands of a partial process - and Christine Chinkin - a law professor willing to sign off on an indictment before the evidence is in - the UN Human Rights Council no doubt found its ideal inquisitors.


And the council will no doubt be looking for their final report to be a final stamp of confirmation on the verdict it already determined.

The writer is the former minister of justice and attorney general of Canada. He is a member of the Canadian Parliament, special counsel on human rights and international justice to the Liberal Party, and a law professor (on leave) at McGill University. ( 1995 - 2008 The Jerusalem Post. 08/19/09)
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shira Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Aug-20-09 09:08 AM
Response to Original message
2. about the author of the OP
Edited on Thu Aug-20-09 09:11 AM by shira
http://en.wikipedia.org/wiki/Irwin_Cotler

Irwin Cotler, PC, OC, MP (born May 8, 1940) was Canada's Minister of Justice and Attorney General of Canada from 2003 until the Liberal government of Paul Martin lost power following the 2006 federal election.

Cotler was a professor of law at McGill University and the director of its Human Rights Program from 1973 until his election as a Member of Parliament in 1999 for the Liberal Party of Canada.

He is considered an expert on international law and human rights law.

Irwin Cotler defines '"classical or traditional anti-Semitism" as "the discrimination against, denial of or assault upon the rights of Jews to live as equal members of whatever host society they inhabit", and "new anti-Semitism" as "discrimination against the right of the Jewish people to live as an equal member of the family of nations - the denial of and assault upon the Jewish people's right even to live - with Israel as the "collective Jew among the nations."<16>


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shira Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Aug-20-09 09:27 AM
Response to Reply #2
3. Irwin Cotler: The global reawakening of anti-Semitism
http://network.nationalpost.com/np/blogs/fullcomment/ar...

Compared to most previous anti-Jewish outbreaks, this is often less directed against individual Jews. It attacks primarily the collective Jews, the State of Israel. And then such attacks start a chain reaction of assaults on individual Jews and Jewish institutions . In the past, the most dangerous anti-Semites were those who wanted to make the world Judenrein, 'free of Jews'. Today, the most dangerous anti-Semites might be those who want to make the world Judenstaatrein, 'free of a Jewish state'.



The first modality of the new antisemitism - and the most lethal type - is what I would call genocidal antisemitism. This is not a term that I use lightly or easily. In particular, I am referring to the Genocide Convention's prohibition against the 'direct and public incitement to genocide'. If antisemitism is the most enduring of hatreds and genocide is the most horrific of crimes, then the convergence of this genocidal intent embedded in antisemitic ideology is the most toxic of combinations.



And so it is then that Israel is delegitimized - if not demonized - by the ascription to it of the two most scurrilous indictments of twentieth-century racism - Nazism and apartheid - the embodiment of all evil. These very labels of Zionism and Israel as 'racist, apartheid, and Nazi' supply the criminal indictment. No further debate is required. The conviction that this 'triple racism' warrants the dismantling of Israel as a moral obligation has been secured. For who would deny that a 'racist, apartheid, Nazi' state should not have any right to exist today? What is more, this characterization allows for terrorist 'resistance' to be deemed justifiable - after all, such a situation is portrayed as nothing other than occupation et rsistance, where 'resistance' against a racist, apartheid, Nazi occupying state is legitimate, if not mandatory.



If ideological antisemitism seeks to mask itself under the banner of anti-racism, legalized antisemitism is even more sophisticated and insidious. Here, antisemitism simultaneously seeks to mask itself under the banner of human rights, to invoke the authority of international law, and to operate under the protective cover of the UN. In a word - and in an inversion of human rights, language and law - the singling-out of Israel and the Jewish people for differential and discriminatory treatment in the international arena is 'legalized'.



The data unsurprisingly confirm that antisemitic incidents are very much on the rise. Still, the available figures only show half the picture - they demonstrate an increase in this old/new antisemitism by concentrating on the traditional antisemitic paradigm targeting individual Jews and Jewish institutions, while failing to consider the new antisemitic paradigm targeting Israel as the Jew among nations and the fall-out from it for traditional antisemitism. But the rise in traditional antisemitism is bound up with the rise in the new antisemitism, insidiously buoyed by a climate receptive to attacks on Jews because of the attacks on the Jewish state. Indeed, reports illustrate both an upsurge in violence and related antisemitic crimes corresponding with the 2006 Israel-Hezbollah War, and the recent 2009 Israel-Hamas war, which delegates to the ICCA Conference characterized as a "pandemic".
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