‘We did not ap­ply crim­i­nal stan­dard of proof’

The Jewish Chronicle - - News -

be­yond the ca­pa­bil­ity of the Is­rael De­fence Force.

Whether Is­raelis end up in the In­ter­na­tional Crim­i­nal Court will de­pend upon whether good-faith do­mes­tic in­ves­ti­ga­tions and pos­si­ble pros­e­cu­tions are held and, of course, the at­ti­tude of the per­ma­nent mem­bers of the Se­cu­rity Coun­cil.

Iamhap­py­to­havetheop­por­tu­ni­tyof re­spond­ing to what was ei­ther mis­un­der­stood or mis­re­ported in The For­ward. I ex­plained to the jour­nal­ists that the UN Fact-Find­ing Mis­sion was not a ju­di­cial or even a quasi-ju­di­cial pro­ceed­ing. It was a mis­sion to es­tab­lish the facts re­lat­ing to the com­mis­sion of vi­o­la­tions of in­ter­na­tional law. As the re­port made clear, we did not ap­ply a crim­i­nal stan­dard of proof, i.e. proof be­yond a rea­son­able doubt. We based our find­ing on what we saw with our own eyes and the ev­i­dence we heard with our own ears. We care­fully checked the ev­i­dence against other es­tab­lished facts and re­ports, and had re­gard to the con­sis­tency of the ver­sions given by the peo­ple with whom we spoke. In a sub­stan­tial num­ber of cases, we checked the in­for­ma­tion against other ev­i­dence, in­clud­ing pho­to­graphs and satel­lite im­agery. We did not at­tempt to iden­tify per­sons who might be re­spon­si­ble for the com­mis­sion of the al­leged vi­o­la­tions — that was not within our man­date and, in any event, we did not have the re­sources or time to do that. We did not col­lect any in­for­ma­tion for the pur­pose of pros­e­cu­tions — that would be a con­se­quence o n l y o f a for­mal i n q u i r y and that is what we have rec­om­mended.

I might add that there have been­many other sim­i­lar fact-find­ing mis­sions. They were con­ducted prior to the es­tab­lish­ment of both the Yu­goslavia and Rwanda tribunals, and they were use­ful when de­ter­min­ing where we should di­rect our in­ves­ti­ga­tions. To sug­gest that this ex­pla­na­tion is a back­track­ing on my part is without any foun­da­tion.

The sug­ges­tion that I have be­trayed Is­rael by agree­ing to head the in­quiry is dif­fi­cult to un­der­stand. On the con­trary, I be­lieved that what I agreed to do would be in the in­ter­ests of Is­rael and the re­gion. Hav­ing re­ceived an even-handed man­date, I be­lieved that Is­rael would seize the op­por­tu­nity of co-op­er­at­ing with the mis­sion and as­sist us in de­cid­ing how to ap­proach our man­date and in­form us of the is­sues that Is­rael would like to have in­ves­ti­gated. Had that hap­pened, the mis­sion could have placed Is­rael on the high moral ground and helped the Hu­man Rights Coun­cil em­bark in a new di­rec­tion of even-hand­ed­ness with re­gard to Is­rael. In any event, I take the strong­est ob­jec­tion to the sug­ges­tion that be­cause I am Jewish I should refuse to be­come in­volved in a sit­u­a­tion where al­leged un­law­ful con­duct by Is­rael is the sub­ject of in­ves­ti­ga­tion. On that ba­sis, no Is­raeli judge or lawyer should be­come in­volved in a good-faith in­ves­ti­ga­tion into the same al­le­ga­tions.

The highly re­gret­table and, I might say, dis­grace­ful re­marks of Am­bas­sador Oren that the Re­port “goes fur­ther than Ah­madine­jad and the Holo­caust de­niers by strip­ping the Jews not only of the abil­ity and the need but of the right to de­fend them­selves” and “por­trays Jews as de­lib­er­ate mur­der­ers of in­no­cents — as Nazis” are dif­fi­cult to credit as hav­ing come from a se­nior rep­re­sen­ta­tive of Is­rael. Am­bas­sador Oren must surely ap­pre­ci­ate that the re­port in no way con­tra­dicts the right of Is­rael to de­fend it­self. His re­marks are again ev­i­dence of a re­fusal by the gov­ern­ment of Is­rael to come to grips with the sub­stance of the re­port and its pol­icy to de­flect its sub­stance by mak­ing ten­den­tious and highly emo­tional in­sults. I sug­gest that in time Am­bas­sador Oren will be ashamed of those re­gret­table as­ser­tions.

I have re­sponded to at­tacks upon Pro­fes­sor Chinkin now on count­less oc­ca­sions and I had hoped that it was by now widely un­der­stood that her con­dem­na­tion dur­ing Op­er­a­tion Cast lead of both the Is­rael De­fence Force and of Ha­mas re­lated to is­sues with which our mis­sion and re­port had noth­ing to do.

She ques­tioned Is­rael’s right of self­de­fence as an oc­cu­py­ing power — a tech­ni­cal is­sue on which the In­ter­na­tional Court of Jus­tice had ear­lier ruled against Is­rael. It was an is­sue that we were not called upon at all to opine. I have re­peat­edly stated that in my opin­ion, the let­ter she signed, to­gether with many em­i­nent in­ter­na­tional lawyers, was in no way a rea­son for her to with­draw from the mis­sion.

The rules of war­fare are by no means outdated. That is the gen­eral view of in­ter­na­tional hu­man­i­tar­ian lawyers. The man­ner in which they are to be in­ter­preted in [the con­text of] new forms of war­fare is an­other mat­ter.

En­voy to the US, Michael Oren

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