111th CONGRESS

1st Session

H. RES. 867

Calling on the President and the Secretary of State to oppose unequivocally any endorsement or further consideration of the "Report of the United Nations Fact Finding Mission on the Gaza Conflict" in
multilateral fora.

IN THE HOUSE OF REPRESENTATIVES

October 23, 2009

 Ms. ROS-LEHTINEN (for herself, Mr. BERMAN, Mr. BURTON of Indiana, and
 Mr. ACKERMAN) submitted the following resolution; which was referred
to the Committee on Foreign Affairs

RESOLUTION

Calling on the President and the Secretary of State to oppose
unequivocally any endorsement or further consideration of the `Report
of the United Nations Fact Finding Mission on the Gaza Conflict’ in
multilateral fora.

Whereas, on January 12, 2009, the United Nations Human Rights Council
passed Resolution A/HRC/S-9/L.1, which authorized a `fact-finding
mission’ regarding Israel’s conduct of Operation Cast Lead against
violent militants in the Gaza Strip between December 27, 2008, and
January 18, 2009;

Whereas the resolution pre-judged the outcome of its investigation, by
one-sidedly mandating the `fact-finding mission’ to `investigate all
violations of international human rights law and International
Humanitarian Law by . . . Israel, against the Palestinian people . . .
particularly in the occupied Gaza Strip, due to the current
aggression’;

Whereas the mandate of the `fact-finding mission’ makes no mention of
the relentless rocket and mortar attacks, which numbered in the
thousands and spanned a period of eight years, by Hamas and other
violent militant groups in Gaza against civilian targets in Israel,
that necessitated Israel’s defensive measures;

Whereas the `fact-finding mission’ included a member who, before
joining the mission, had already declared Israel guilty of committing
atrocities in Operation Cast Lead by signing a public letter on
January 11, 2009, published in the Sunday Times, that called Israel’s
actions `war crimes’;

Whereas the mission’s flawed and biased mandate gave serious concern
to many United Nations Human Rights Council Member States which
refused to support it, including Bosnia and Herzegovina, Cameroon,
Canada, France, Germany, Italy, Japan, the Netherlands, the Republic
of Korea, Slovakia, Slovenia, Switzerland, Ukraine, and the United
Kingdom of Great Britain and Northern Ireland;

Whereas the mission’s flawed and biased mandate troubled many
distinguished individuals who refused invitations to head the mission;

Whereas, on September 15, 2009, the `United Nations Fact Finding
Mission on the Gaza Conflict’ released its report;

Whereas the report repeatedly made sweeping and unsubstantiated
determinations that the Israeli military had deliberately attacked
civilians during Operation Cast Lead;

Whereas the authors of the report, in the body of the report itself,
admit that `we did not deal with the issues . . . regarding the
problems of conducting military operations in civilian areas and
second-guessing decisions made by soldiers and their commanding
officers `in the fog of war.’;

Whereas in the October 16th edition of the Jewish Daily Forward,
Richard Goldstone, the head of the `United Nations Fact Finding
Mission on the Gaza Conflict’, is quoted as saying, with respect to
the mission’s evidence-collection methods, `If this was a court of
law, there would have been nothing proven.’;

Whereas the report, in effect, denied the State of Israel the right to
self-defense, and never noted the fact that Israel had the right to
defend its citizens from the repeated violent attacks committed
against civilian targets in southern Israel by Hamas and other Foreign
Terrorist Organizations operating from Gaza;

Whereas the report largely ignored the culpability of the Government
of Iran and the Government of Syria, both of whom sponsor Hamas and
other Foreign Terrorist Organizations;

Whereas the report usually considered public statements made by
Israeli officials not to be credible, while frequently giving
uncritical credence to statements taken from what it called the `Gaza
authorities’, i.e. the Gaza leadership of Hamas;

Whereas, notwithstanding a great body of evidence that Hamas and other
violent Islamist groups committed war crimes by using civilians and
civilian institutions, such as mosques, schools, and hospitals, as
shields, the report repeatedly downplayed or cast doubt upon that
claim;

Whereas in one notable instance, the report stated that it did not
consider the admission of a Hamas official that Hamas often `created a
human shield of women, children, the elderly and the mujahideen,
against [the Israeli military]‘ specifically to `constitute evidence
that Hamas forced Palestinian civilians to shield military objectives
against attack.’;

Whereas Hamas was able to significantly shape the findings of the
investigation mission’s report by selecting and prescreening some of
the witnesses and intimidating others, as the report acknowledges when
it notes that `those interviewed in Gaza appeared reluctant to speak
about the presence of or conduct of hostilities by the Palestinian
armed groups . . . from a fear of reprisals’;

Whereas even though Israel is a vibrant democracy with a vigorous and
free press, the report of the `fact-finding mission’ erroneously
asserts that `actions of the Israeli government . . . have contributed
significantly to a political climate in which dissent with the
government and its actions . . . is not tolerated’;

Whereas the report recommended that the United Nations Human Rights
Council endorse its recommendations, implement them, review their
implementation, and refer the report to the United Nations Security
Council, the Prosecutor of the International Criminal Court, and the
United Nations General Assembly for further action;

Whereas the report recommended that the United Nations Security Council-

(1) require the Government of Israel to launch further investigations
of its conduct during Operation Cast Lead and report back to the
Security Council within six months;

(2) simultaneously appoint an `independent committee of experts’ to
monitor and report on any domestic legal or other proceedings
undertaken by the Government of Israel within that six-month period;
and

(3) refer the case to the Prosecutor of the International Criminal
Court after that six-month period;

Whereas the report recommended that the United Nations General
Assembly consider further action on the report and establish an escrow
fund, to be funded entirely by the State of Israel, to `pay adequate
compensation to Palestinians who have suffered loss and damage’ during
Operation Cast Lead;

Whereas the report ignored the issue of compensation to Israelis who
have been killed or wounded, or suffered other loss and damage, as a
result of years of past and continuing rocket and mortar attacks by
Hamas and other violent militant groups in Gaza against civilian
targets in southern Israel;

Whereas the report recommended `that States Parties to the Geneva
Conventions of 1949 start criminal investigations [of Operation Cast
Lead] in national courts, using universal jurisdiction’ and that
`following investigation, alleged perpetrators should be arrested and
prosecuted’;

Whereas the concept of `universal jurisdiction’ has frequently been
used in attempts to detain, charge, and prosecute Israeli and United
States officials and former officials in connection with unfounded
allegations of war crimes and has often unfairly impeded the travel of
those individuals;

Whereas the State of Israel, like many other free democracies, has an
independent judicial system with a robust investigatory capacity and
has already launched numerous investigations, many of which remain
ongoing, of Operation Cast Lead and individual incidents therein;

Whereas Libya and others have indicated that they intend to further
pursue consideration of the report and implementation of its
recommendations by the United Nations Security Council, the United
Nations General Assembly, the United Nations Human Rights Council, and
other multilateral fora;

Whereas the President instructed the United States Mission to the
United Nations and other international organizations in Geneva to vote
against resolution A-HRC-S-12-1, which endorsed the report and
condemned Israel, at the special session of the Human Rights Council
held on October 15-16, 2009;

Whereas, on September 30, 2009, Secretary of State Hillary Clinton
described the mandate for the report as `one-sided’;

Whereas, on September 17, 2009, Ambassador Susan Rice, United States
Permanent Representative to the United Nations, expressed the United
States’ `very serious concern with the mandate’ and noted that the
United States views the mandate `as unbalanced, one-sided and
basically unacceptable’;

Whereas the `Report of the United Nations Fact Finding Mission on the
Gaza Conflict’ reflects the longstanding, historic bias at the United
Nations against the democratic, Jewish State of Israel;

Whereas the `Report of the United Nations Fact Finding Mission on the
Gaza Conflict’ is being exploited by Israel’s enemies to excuse the
actions of violent militant groups and their state sponsors, and to
justify isolation of and punitive measures against the democratic,
Jewish State of Israel;

Whereas, on October 16, 2009, the United Nations Human Rights Council
voted 25-6 (with 11 states abstaining and 5 not voting) to adopt
resolution A-HRC-S-12-1, which endorsed the `Report of the United
Nations Fact Finding Mission on the Gaza Conflict’ and condemned
Israel, without mentioning Hamas, other such violent militant groups,
or their state sponsors; and

Whereas efforts to delegitimize the democratic State of Israel and
deny it the right to defend its citizens and its existence can be used
to delegitimize other democracies and deny them the same right: Now,
therefore, be it

Resolved, That the House of Representatives-

(1) considers the `Report of the United Nations Fact Finding Mission
on the Gaza Conflict’ to be irredeemably biased and unworthy of
further consideration or legitimacy;

(2) supports the Administration’s efforts to combat anti-Israel bias
at the United Nations, its characterization of the `Report of the
United Nations Fact Finding Mission on the Gaza Conflict’ as
`unbalanced, one-sided and basically unacceptable’, and its opposition
to the resolution on the report;

(3) calls on the President and the Secretary of State to continue to
strongly and unequivocally oppose any endorsement of the `Report of
the United Nations Fact Finding Mission on the Gaza Conflict’ in
multilateral fora;

(4) calls on the President and the Secretary of State to strongly and
unequivocally oppose any further consideration of the `Report of the
United Nations Fact Finding Mission on the Gaza Conflict’ and any
other measures stemming from this report in multilateral fora; and

(5) reaffirms its support for the democratic, Jewish State of Israel,
for Israel’s security and right to self-defense, and, specifically,
for Israel’s right to defend its citizens from violent militant groups
and their state sponsors.

2) Letter of R. Goldstone

MEMORANDUM

 FROM: RICHARD GOLDSTONE
 TO: INTERESTED PERSONS
 RE: HR 867

Here are some comments on this resolution in an effort to correct factual errors:

1. Paragraph 3:

That is why I and others refused the original mandate - it only called for an investigation into violations committed by Israel. The mandate given to and accepted by me and under which we worked and reported reads as follows:

“. . .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 20089, whether before, during or after”.

That mandate clearly included rocket and mortar attacks on Israel and as the report makes clear was so interpreted and implemented. It was the report with that mandate that was adopted by the Human Rights Council and that included the serious findings made against Hamas and other militant Palestinian groups.

2. Paragraph 4:

This is factually incorrect. Chapter XXIV of the Report considers in detail the relentless rocket attacks from Gaza on Israel and the terror it caused to the people living within their range. The finding is made that they constituted serious war crimes and possibly crimes against humanity.

3. Paragraph 5:

The member concerned, Professor Christine Chinkin of the London School of Economics, in the same letter, together with other leading international lawyers, also condemned as war crimes the Hamas rockets fired into Israel.

4. Paragraph 6:

The mandate that was given to the Mission was certainly not opposed by all or even a majority of the States to which reference is made. That is factually incorrect. I am happy to provide further details if necessary.

5. Paragraph 7:

This too is factually incorrect. The mandate that had been rejected was the one I rejected. Mary Robinson, for example, has written in support of the mandate given to and accepted by me.

6. Paragraph 9:

The words quoted relate to the decision we made that it would have been unfair to investigate and make finding on situations where decisions had been made by Israeli soldiers “in the fog of battle”. This was a decision made in favor and not against the interests of Israel.
I do not consider that it is fair or just to label the findings as “sweeping and unsubstantiated determinations”.

7. Paragraph 11:

What I had explained to The Forward was that the Report itself would not constitute evidence admissible in court of law and that investigators would have to investigate which allegations they considered relevant. That, too, was why we recommended domestic investigations into the allegations. The remark as quoted is both inaccurate and taken completely out of context.

8. Paragraph 12:

It is again factually incorrect to state that the Report denied Israel the right of self-defense. The report examined how that right was implemented by the standards of international law. What is commonly called ius ad bellum, the right to use military force was not considered to fall within our mandate. Israel’s right to use military force was not questioned.

9. Paragraph 13:

This is the first suggestion that I have come across to the effect that we should have investigated the provenance of the rockets. It was simply not on the agenda, and in any event, we would not have had the facilities or capability of investigating these allegations. If the Government of Israel has requested us to investigate that issue I have no doubt that we have done our best to do so.

10. Paragraph 14:

This is a sweeping and unfair characterization of the Report. I hope that the Report will be read by those tasked with considering the resolution.

11.Paragraph 16:

Again, this is an unfair and selective quotation taken our of context.

12. Paragraph 17:

That Hamas was able to shape the findings or that it pre-screened the witnesses is devoid of truth and I challenge anyone to produce evidence in support of it.

Finally, I note that there is not a word to record that notwithstanding repeated pleas to the Government of Israel, it refused all cooperation with the Mission. Amongst others, I requested the views of Israel with regard to the implementation of the mandate and details of any issues that the Government of Israel might wish us to investigate.