Andrew Clapham is Professor of International Law at the Graduate Institute of International Studies in Geneva and Director of the Geneva Academy of International Humanitarian Law and Human Rights.

What are the legal obligations of the UN member states once Justice Goldstone presents the report to the Human Rights Council?

"There’s a general obligation to co-operate with the UN. The strict legal obligations don’t really flow from the report. The strict legal implications flow from existing international humanitarian law. So the Goldstone report actually catalogues violations of human rights law, which States and other entities have obligations to remedy and to investigate. So it’s not the fact of the presentation that creates the obligation, he is reporting on violations of existing obligations if you follow me? What might happen in the future is if the Security Council were to demand that Israel and other entities were to investigate, at that point that would be a new legal obligation generated by the Security Council."
 

And what would you expect to see happen at that point?

"Depending on the amount of menace the Security Council puts into its demand, if I can put it like that, in the sense that if they say “If you don’t investigate we will refer this situation to the International Criminal Court”, at that point people will sit up and take notice because a referral to the International Criminal Court would be quite dramatic for the individuals concerned because they would then be subject to possible arrest around the world. Things could get very concrete for the persons accused of war crimes."
 

Entering the political arena a bit more, there is talk that it would never get to that point because Israeli allies; in particular the United States, would veto any recommendation. If that were to happen is that the end of the story, legally speaking?

"It’s not really the end of the story strictly speaking. The violations reported by Goldstone constitute war crimes and those are crimes of universal jurisdiction. So if an individual accused of one of those crimes were to be arrested in a Belgium or France or Britain, they could be tried in that country for violations of the Geneva Convention, irrespective of whether the Security Council has blocked an eventual referral to the International Criminal Court. It’s not the end of the chapter, as the information in the report could be taken up by a prosecutor anywhere else in the world and used against any one of the implicated individuals."
 

And that’s already true at this point, or will become on September 26th when Justice Goldstone makes his makes his presentation to the Security Council?

"To be honest, it’s true now. It’s not the fact of his public presentation that would change it. If the information in the report were followed up by a national prosecutor who then gathered their own evidence, somebody could be arrested and tried on information triggered by the report."
 

So what is the statue of the violations that Justice Goldstone and the other members of the commission have noted?

"They are crimes under national law but most importantly in the current context they are crimes under international law, and that means that they could be tried even outside the territory in which they were committed. So to give a well known example, when Pinochet was arrested in London, he wasn’t arrested for having done anything in Britain, or having tortured any British people, or having been British, it was because he was accused of an international crime, in that case torture, and therefore under new legislation and new international treaties, the courts of Britain had jurisdiction to possibly try him or if not; extradite him. And that same ‘Pinochet principle’ or universal jurisdiction principal applies to the Geneva Convention. Most States have law on their book that allows them to try war criminals even if they didn’t commit their war crimes in that country. You may remember some Rwandan people were tried in Switzerland and in Belgium and elsewhere even though they had nothing to do with Rwanda." 
 

Amnesty International and Human Rights Watch have issued reports about the Gaza conflict already. What legally speaking is the difference between these reports and the Goldstone report?

"That’s a very good question. I suppose there is a slight qualitative difference in that Goldstone having been a prosecutor and a judge and having worked with lawyers, has gathered evidence in a way that is closer to what a prosecutor would use in a court of law than what a human rights organisation would use on their website. With a human rights organisation the methodology is mostly about victims testimony, obviously checking it against the facts. But it is less related to the mentality and the actions of the perpetrator. It’s about telling the story and asking the government to rectify it. Whereas because of Goldstone’s background and because of the mandate they were given, a lot of this is written in terms of whether or not it could constitute a crime in terms of a human rights violation. And a crime obviously implies that there is an individual perpetrator who could be brought to justice and having had the mental element to commit the crime, that one could be convicted beyond reasonable doubt. So the methodology is slightly different in that sense from an Amnesty International or Human Rights Watch report, which is less concerned about naming perpetrators. If you look again at Amnesty reports you will see that very rarely do they talk about the individual who did the act. It’s from the victim’s perspective. Whereas here although they’re not naming the perpetrators, the incidents and commanders could be identified in a way that would suggest their knowledge at the time of the alleged crime, and that sets the scene for an eventual criminal prosecution."
 

I see, so in terms of the methodology the investigation was conducted with a view to possibly bringing charges against people and organisations?

"It’s not the first step of a new international criminal tribunal. He wasn’t trying to provide that kind of evidence. But the methodology was, as you’re suggesting, much closer to a possible criminal trial, and in fact as you realised the main recommendation is that the Israel and Hamas authorities should now carry out criminal investigations based on this evidence. So it’s a prod to the national authorities to go ahead and carry out criminal investigations as opposed to rectifying a human rights situation, which is the other type of methodology."
 
And also presumably the fact that the UN Human Rights Council gave Justice Goldstone this mandate, does that give it a different status than for example the Amnesty report?

"Yes, in terms of legitimacy, the Human Rights Council are elected by all the States in the world in quite a complicated process. Therefore, if they mandate a group of people to carry out an investigation it carries the weight of a UN mandated report demanded by an elected group of States. So in that case it’s different. And of course it’s carried out by the UN Secretariat and the members of this commission have been very carefully selected. No such transparent process occurs for the selection of the Amnesty members on a mission. They are not mandated by the UN and there is no special international procedure for electing them, so it is different in that sense. In terms of international legitimacy there will be people who say, “we prefer amnesty to the UN, we think they are more impartial than the UN”, but in this particular context having chosen Goldstone and the other members of the commission so carefully I think obviously the quality comes through."
 
We have seen the Security Council refer the Darfur situation to the International Criminal Court. Do you think that Justice Goldstone’s recommendation that if investigations aren’t carried out that they should do that once again, marks broader implications generally for the International Criminal Court?

"I think so; I think it puts the International Criminal Court at the heart of the debate. The report doesn’t only focus on the possibility of a Security Council referral it also mentions in passing that the Palestinian Authority has accepted the jurisdiction of the International Criminal Court. Now there is a very complicated set of legal issues around that. There could be questions of dual nationality and so on. I think individuals are starting to realise that even if when they are carrying out their military operation, which may not seem to come within the jurisdiction of the International Criminal Court, lots of things could happen down the road and then they could be brought within the jurisdiction of the International Criminal Court. So it’s not just the fact of the court but the crimes that you could be accused of which are now in the front of people’s minds. And I think that’s a big step forward that a military commander in any conflict now has to recon with the fact that the International Criminal Court could eventually come to cover that conflict."

And you to think that’s a positive move for international justice?

"Absolutely, and particularly for humanitarian law. If military commanders have to think twice before endangering civilians because they fear that the International Criminal Court, or the crimes that they cover, could be engaged on their individual States, or that the prosecutor of the International Criminal Court might come after them it’s going to lead to better protection for civilians."

Like the criticism of the African Union and several African leaders concerning Darfur, accusing the International Criminal Court of bias and targeting Africans, we are now seeing similar complaints of bias and that the report is politicised, coming from Israel. Is it disheartening for you to see how quickly these things become politicised?

" When a state is accused of violating international law, especially human rights law and things that shock the conscience of mankind, they will resist. They won’t say, “this is legal, this is not political, this is expert, we need to look at the facts.” There will always be resistance. Every state rejects complaints of human rights abuse against it. So I’m not surprised at that level of criticism. Of course the quickest way to get rid of an Amnesty report or a UN report is to say that the people who wrote it are biased, and to start talking about the individuals rather than the facts. Here there are a lot of facts and it’s 500 pages. It’s a lot to get through. Its remarkable how quickly people have gone on to discuss the bias of the body that appointed these people or the individual bias of the people, rather than focusing on the incidents reported." 
 

There is a lot of hope that there will be a closer relationship between the US and the International Criminal Court. Is there a possibility that this report may scare off the United States given its close relationship with Israel and given the very political nature of issues regarding Israel in the United States?

"It’s complicated because as you know the United States is also trying to broker a peace. How they use this report in that context is going to be part of their secret negotiations. I don’t think it will turn them completely against international justice. I think they may come to see the utility of having the International Criminal Court in the background of such negotiations. So, no, I don’t think it will turn people off the International Criminal Court. I think its a timely reminder that this court was set up to deal with precisely these kinds of allegations and whether they are dealt with in the International Criminal Court or at the national level I think it actually fits with the US policy of saying, “actually we need to have an international rule of law, we need to be able to complain when other states have violated international law, and we need to take international law seriously.”
 

Photo: Graduate Institute of International Studies