‘We did not apply criminal standard of proof’
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