Justice Richard Goldstone
Head of the UN Fact-Finding Mission
On the Gaza Conflict
OHCHR
Palais des Nations
1211 Geneva 10

Geneva, 2 July 2009

Dear Justice Goldstone,

Thank you for your letter dated 20 May 2009. I have been asked in this response to respond also to your letter dated 4 May 2009 to Prime Minister Netanyahu.

I regret your impression that you have received no reply to your request for cooperation with the proposed Mission.  I reiterate the official response to your request contained in my previous letter to you, dated 7 April 2007, that regrettably Israel will not be able to cooperate with the proposed Mission.

I also reiterate that this decision does not reflect in any way on you personally or the regard with which you are held in Israel. It is simply a recognition that the legal basis of the proposed mission is HRC Resolution S-9/1. This resolution, beyond its inflammatory and prejudicial language, clearly provides that the mandate of the Mission is limited to investigating "violations" by "the occupying Power, Israel against the Palestinian people" (OP14).

You will understand Israel's reluctance to cooperate with or give legitimacy to a Mission mandated to investigate the lawful use of force by a State to protect its citizens, yet required to ignore the illegal use of force by terrorist groups which made such action necessary.

Indeed it was this prejudicial and one-sided mandate which prompted many States, including the European Union, Canada, Japan and Switzerland, to refuse to support the Resolution and which led a distinguished list of human rights experts to decline the invitation to head the proposed Mission. As Mary Robinson, former High Commissioner for Human Rights, stated in explaining her refusal to serve as Head of the Mission:

“I am afraid the resolution is not balanced because it focuses on what Israel did, without calling for an investigation on the launch of the rockets by Hamas. This is unfortunately a practice by the Council: adopting resolutions guided not by human rights but by politics. This is very regrettable." (Le Temps, 4 February 2009).

I note your assurances that the mandate of the Mission as expressed to you by the President of the Council is not as set out in the Council Resolution.  I note also that you yourself have distanced yourself from this text.  (In our correspondence you have ceased signing your letters as Head of the "Fact-finding Mission established under HRC Resolution S-9/1" and now use the term "International Independent Fact Finding Mission" or United Nations Fact Finding Mission on the Gaza Conflict"  - though the term "Gaza Conflict" would itself seem to exclude the relevance of attacks on Southern Israel.)

However, as a matter of law, no statement by any individual, including the President of the Council, has the force to change the mandate of the Mission. Moreover, even subsequent to his supposed clarifications, in a press conference on 16 April 2009, Ambassador Uhomoibhi stated clearly that it is operative paragraph 14 of Resolution S-9/1 which "spells out the mandate".

This accords with the provisions of the UN General Assembly's  Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security (A/RES/46/59) which provides that: "The decision by the competent United Nations organ to undertake fact-finding should always contain a clear mandate for the fact-finding Mission" (para. 17, emphasis added). And indeed Resolution S-9/1 does contain a clear mandate, albeit one which is hard to reconcile with the Declaration on Fact-finding's requirement that "Fact-finding should be comprehensive, objective, impartial and timely" (para.3).

I also note that, even should the Mission choose to operate in accordance with terms of reference which it has devised for itself, the Council's treatment of its report and any subsequent proceedings would still be based on the terms of Resolution S-9/1. And indeed there is nothing in the practice of the Council as it relates to Israel to date, that suggests it would not continue with its wholly one-sided approach. 

Israel's decision not to cooperate with the Mission is, I should emphasize, without prejudice to its conviction that any allegations of wrongdoing by Israeli forces in the course of the conflict must be investigated, and where appropriate, prosecuted. It is for this reason that the IDF initiated a series of far-reaching command investigations into a wide range of incidents and operational aspects of the conflict. In the past such investigations have led to criminal prosecutions. The findings are currently being examined by the Military Advocate General, and will also be examined by the Attorney General. Both the decisions of the Military Advocate General and of the Attorney General can be appealed – by Israelis or Palestinians alike – to the Supreme Court sitting as the High Court of Justice.

Israel's decision was prompted purely by the legal basis of the Mission and its mandate, and without regard to the personalities involved. (In passing,  however, I am obliged to register serious concern that one member of the Mission was signatory during the conflict to a public letter which made a number of clearly political and prejudgmental assertions, including that "the rocket attacks on Israel by Hamas do not amount to an armed attack entitling Israel to rely on self-defence(!)" [Sunday Times Letters Page, 11, January 2009]).

Some aspects of the conduct of the Mission have, in Israel's view, supported its decision not to cooperate with this initiative. Reports that the members of the Mission were accompanied at every stage of their visit to Gaza by Hamas officials gives serious reason to doubt that any true picture of the situation in Gaza, and especially of the cynical abuse of the civilian population by Hamas, can possibly emerge.

Israel is also concerned and confused by the decision to hold public hearings, broadcast on television and internet, as part of the fact-finding process. As you yourself have noted, this procedure is unprecedented as part of fact-finding operations. The very point of a fact-finding mission is that a team of experts bring their experience and judgment to bear in assessing the available evidence and drawing responsible conclusions – not that  raw evidence, perhaps of questionable authenticity, is directly broadcast into the public arena. Such a trial by public opinion, which of necessity cannot give any weight to confidential or sensitive information, can serve little purpose in ascertaining the truth, and is only likely to prejudice public opinion in advance of any other conclusions.

I take this opportunity to emphasize once again that Israel's decision should not be interpreted in any way as an aspersion on your own integrity or commitment to impartiality.  To the contrary, your involvement prompted Israel to give closer and more considered thought to its response to this initiative and increases our regret that it is not one we can cooperate with or support.  

Sincerely, 

Aharon Leshno Yaar
Ambassador
Permanent Representative