United Nations Fact-Finding Mission on the Gaza Conflict

Operation Cast Lead, the military operation at the centre of the inquiry, took place in Gaza from 27 December 2008 to 18 January 2009.[1] The mission situated those operations within a longer period beginning principally with the ceasefire agreed between Israel and Hamas on 19 June 2008, rather than restricting its attention to the three weeks of fighting.[1] Its eventual examination extended to related continuing violations through 31 July 2009 and included historical context and connections it identified between the military operations and broader Israeli policies toward the Occupied Palestinian Territory.[1]

Rocket and mortar attacks on southern Israel formed part of the circumstances examined by the mission.[5] The report recorded that approximately 8,000 rockets and mortars had been launched into southern Israel since 2001.[5] It examined the effects of these attacks and the conduct of Palestinian armed groups alongside Israeli military conduct in Gaza.[5] Its assessment of Palestinian attacks distinguished between military objectives and civilian areas, concluding that the rockets and, to a lesser extent, mortars could not be directed at specific military objectives.[5]

On 12 January 2009, while the Gaza operation was still under way, the Human Rights Council adopted Resolution S-9/1 calling for a fact-finding mission.[6] The resolution's wording directed an investigation into violations of international human rights law and international humanitarian law by Israel against Palestinians in the Occupied Palestinian Territory, particularly the Gaza Strip.[6] This initial formulation subsequently became a central issue in Israeli objections to the inquiry.[7]

The Council's president formally established the mission on 3 April 2009.[1] The mandate set out in the mission's report concerned possible violations in the context of the Gaza military operations, whether committed before, during, or after those operations.[1] The mission understood this remit to encompass relevant actions by all parties in Israel and the Occupied Palestinian Territory, and stated that the region's civilian population stood at the centre of its concerns.[1][5] The relationship between the January resolution and this broader interpretation remained an important point of disagreement over the inquiry's authority and scope.[7]

Justice Richard Goldstone chaired the four-member mission.[1] He had served as a judge of South Africa's Constitutional Court and as prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.[1] The other members were Christine Chinkin, an international-law professor at the University of London; Hina Jilani, a Pakistani Supreme Court advocate; and Desmond Travers, a retired Irish Defence Forces colonel.[1]

The mission met in Geneva and undertook three field visits: two to Gaza and one to Amman.[1] Its work included field investigations, public hearings in Gaza and Geneva, and an invitation for interested individuals and organizations to submit information and documentation.[1] It repeatedly sought cooperation from Israel but did not obtain it, entering Gaza through the Rafah crossing with Egyptian assistance.[1] The Palestinian Authority and Gaza authorities cooperated with the inquiry and responded to its questions, whereas Israel did not provide responses.[5]

Access restrictions shaped where testimony could be heard.[5] The mission reported that it could not enter Israel or the West Bank — known by its original, indigenous Jewish name of Judea and Samaria — and therefore heard participants from those places in Geneva.[5] It also reported that it could not meet Palestinian Authority members in the West Bank.[1] Israel's refusal to cooperate rested on objections to the Council's mandate and the mission's impartiality and composition.[7]

The evidentiary material described in the report included 188 individual interviews and more than 300 reports and other documents, together amounting to over 10,000 pages.[5] The mission also reviewed more than 30 videos and 1,200 photographs.[5] It investigated 36 incidents in Gaza, presenting its selection as illustrative of patterns rather than as an exhaustive account of the conflict.[5] The report expressly stated that its findings did not identify individual perpetrators and did not purport to satisfy the standard of proof used in criminal trials.[5]

The report was released in September 2009, with contemporary accounts describing its release on 15 September.[8] The formal United Nations document, A/HRC/12/48, was issued in Geneva on 25 September and runs to 452 numbered pages.[1] It became commonly known as the Goldstone Report after the mission's chairman.[2]

The report concluded that there was evidence of serious Israeli violations of international human rights and humanitarian law, including conduct amounting to war crimes and possibly crimes against humanity.[2] It also found evidence that Palestinian armed groups committed war crimes, and possibly crimes against humanity, through repeated rocket and mortar attacks on southern Israel.[2] These conclusions were assessments of the fact-finding mission, not judgments delivered by a criminal court.[5]

A central allegation was that Israeli conduct reflected a deliberate policy of targeting civilians.[3] The report characterized the Israeli campaign as a “deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population.”[7] Its treatment of Israeli military conduct covered attacks on people and buildings, damage to essential infrastructure, the use of weapons including white phosphorus in populated areas, and the broader effects of restrictions and destruction on civilian life.[5][9]

Among the civilian objects examined were the Palestinian Legislative Council building and Gaza's main prison.[5] The mission concluded that it had not found evidence that those buildings made an effective contribution to military action and assessed the attacks on them as deliberate attacks on civilian objects.[5] It separately considered the opening attacks on police facilities, finding that they failed to balance anticipated military advantage against civilian losses.[5] In reaching that conclusion, the mission treated Gaza's police as a civilian law-enforcement agency while recognizing that individual policemen might also have belonged to armed groups.[5]

The mission investigated 11 incidents involving lethal direct attacks on civilians and concluded that all but one indicated no justifiable military objective.[5] Several concerned people trying to leave their homes, including civilians waving white flags.[5] Contemporary reporting of the findings described seven such incidents, as well as an attack on a mosque during prayer that killed 15 people.[8] The report also assessed attacks on civilians at a mosque and a condolence gathering as intentional attacks and identified grave breaches of the Fourth Geneva Convention in the conduct it examined.[5]

The report's treatment of a house bombing that killed 22 family members included Israel's explanation that an operational error had occurred.[5] It stated that, if the attack resulted from a mistake, it would not constitute wilful killing, although state responsibility could remain.[5] The incidents described in contemporary accounts also included the Samouni neighbourhood of Zeitoun and the shelling of a house in which Israeli soldiers had gathered Palestinian civilians.[8]

Damage to civilian infrastructure was another substantial part of the inquiry.[5] The mission examined food production, water and sewage facilities, industrial sites, and residential buildings.[5] It reported that the destruction of Gaza's only operating flour mill lacked military justification, and that the destruction of a chicken farm killed all 31,000 chickens inside.[5] Another incident involved a strike on a wastewater-treatment lagoon that released more than 200,000 cubic metres of raw sewage onto farmland.[5] The mission interpreted the incidents it investigated as part of a broader pattern of destruction.[5]

The report linked restrictions, destruction of infrastructure, and impediments to food, water, housing, and movement to its conclusion that there was an intention to inflict collective punishment.[5] It further held that some Israeli government actions might justify a competent court finding that crimes against humanity had occurred.[5] Its legal assessment therefore extended beyond individual battlefield incidents to the combined effects of policies and military operations on Gaza's population.[5]

On Palestinian conduct, the mission found that armed groups operated in urban areas and launched rockets from them.[5] It concluded that activity close to civilian or protected buildings unnecessarily exposed Gaza's civilian population to danger.[5] It did not find evidence that the groups had directed civilians to launch areas or forced them to remain nearby.[5] The report also found that Israel had used Palestinian civilians as human shields, while concluding that Israel had not supplied sufficient evidence for a finding that Hamas had done the same.[10]

The mission assessed rocket and mortar attacks into southern Israel as indiscriminate when they were directed into civilian areas.[5] It described attacks launched into such areas without an intended military target as deliberate attacks on civilians that would constitute war crimes and might amount to crimes against humanity.[11] Its findings on Palestinian armed groups thus included both the danger their operations created for Gaza residents and the illegality of attacks against civilians in Israel.[5][11]

The report recorded widely differing estimates of Palestinian fatalities rather than adopting a single overall count.[5] Nongovernmental estimates ranged from 1,387 to 1,417 deaths, Gaza authorities reported 1,444, and Israel reported 1,166.[5] Civilian and combatant classifications also differed: one nongovernmental breakdown listed 926 civilians, 255 police, and 236 combatants among 1,417 deaths, whereas Israel identified 709 of its reported 1,166 deaths as Hamas operatives.[5] Because the mission had not investigated every fatal incident, it declined to determine the overall death toll or the proportion of civilians killed.[5]

Accountability recommendations addressed both Israel and Hamas.[2] The mission called for credible investigations and recommended referral of the evidence to the International Criminal Court prosecutor if either side failed to conduct them within six months.[2] It expressed serious doubts that Israel would undertake investigations that were impartial, independent, prompt, and effective, and found no evidence that Gaza authorities had established a public monitoring or accountability system for serious violations by armed groups.[5] The report also supported universal jurisdiction as a means of investigating grave breaches and recommended follow-up concerning reparations, human rights, the blockade and reconstruction, weapons and military procedures, and protection for human-rights organizations and defenders.[5]

On 16 October 2009, the Human Rights Council adopted the report by 25 votes to six, with 11 abstentions.[12] Israel's representative rejected it as unfair and emphasized that Israel investigated its own military actions.[12] The United States opposed the Council's action, objecting to the report's unbalanced focus on Israel, sweeping legal conclusions, and insufficient attention to Hamas's operations in populated areas.[13]

The General Assembly subsequently endorsed the report through Resolution 64/10, with 114 states voting in favour, 18 against, and 44 abstaining.[14] Israel and the United States were among those opposing the resolution.[14] The nonbinding resolution urged Israel and the Palestinians to investigate the allegations within three months.[14] A November 2009 account also described the Assembly asking the Secretary-General to refer the report to the Security Council and calling for Israel to launch independent, credible investigations into the serious violations identified.[15]

Israel submitted papers to Secretary-General Ban Ki-moon describing its investigations of incidents during the Gaza operation.[3] Some investigations resulted in indictments, criminal charges, or military disciplinary action.[3] Israel also reported changes intended to reduce civilian casualties and damage to civilian property and to further restrict the use of white-phosphorus munitions.[3] These submissions addressed both particular incidents and military procedures relevant to the report's allegations.[3]

On 1 April 2011, Goldstone published an opinion article reconsidering a central conclusion of the inquiry.[16] He wrote that later Israeli investigations indicated that civilians had not been intentionally targeted as a matter of policy, and that the report would have been different had the mission possessed the information subsequently available to him.[3][16] This reassessment concerned the allegation of deliberate policy, rather than constituting a formal rescission of the entire report.[17]

Goldstone cited a United Nations expert committee's finding that Israel had devoted significant resources to investigating more than 400 allegations of misconduct in Gaza.[16] He contrasted that effort with Hamas's failure to investigate rocket and mortar fire at Israel.[16] He also credited Israeli investigations and suggested that casualty estimates might have been exaggerated.[17] His later position thus differed from the report's earlier doubts about Israel's willingness and ability to investigate alleged military abuses.[3][17]

The Samouni family case featured in his reconsideration.[16] Goldstone discussed Israel's explanation that an Israeli commander had misinterpreted drone imagery before the shelling of the family home.[16] He expressed regret that the mission had lacked evidence about the circumstances of civilian deaths, explaining that such material might have affected its findings concerning intent and war crimes.[16] At the same time, he regretted Israel's lack of cooperation with the original inquiry.[17][16]

Hina Jilani, Christine Chinkin, and Desmond Travers publicly maintained their support for the report after Goldstone's article.[4] They described its conclusions as the product of independent and objective consideration of information within the mandate, including an assessment of reliability and credibility.[4] They saw no basis for reconsidering or retracting the report and objected to Goldstone's characterization of its findings.[4][18] In their response, they argued that rewriting or reconsidering the document would deny victims on both sides truth and justice.[18]

Goldstone's reassessment prompted calls to reconsider or withdraw the report, but it did not formally rescind the document.[17][4] His three colleagues' continued support left a public division among the mission's members over the significance of subsequent information.[4][18] The central distinction in the aftermath was between Goldstone's changed judgment about intentional targeting as Israeli policy and the continued existence of the report and its other conclusions.[3][17]

The mandate dispute concerned whether the inquiry's broader examination of all parties resolved the limitations of the Council's original resolution.[7][9] Israel's initial response of 24 September 2009 argued that Resolution S-9/1 authorized a one-sided investigation and that its mandate had never legally been changed.[7] The mission, by contrast, stated that it interpreted its remit to cover possible violations by all parties.[1] Goldstone's approach was also described as broadening an original mandate limited to Israeli violations.[9]

Israel's objections extended to the mission's composition, selection of witnesses and incidents, public hearings, evidentiary approach, and legal conclusions.[7] Israel rejected the allegation that it maintained a policy of deliberately targeting civilians.[9] Other criticism focused on alleged methodological, factual, and legal errors and on insufficient attention to the asymmetry of the conflict and Palestinian armed groups' operations in densely populated areas.[9] Critics also argued that the inquiry inadequately investigated Hamas's alleged use of civilian sites and civilians as shields.[10]

Criticism of the mandate focused on its wording, which directed the mission to investigate violations “by the occupying Power, Israel” against Palestinians rather than possible violations by all sides. Israel's initial response also questioned Christine Chinkin's impartiality because of her earlier public statements about the operation.[7] In a separate commentary, Jeremy Rabkin challenged the report's treatment of intent, military targeting, and proportionality, including its argument that some civilians and civilian objects had been treated as supporting infrastructure.[19] Rabkin also argued that lack of access to Israeli military records and personnel, and the inability to ensure security for Gaza interviewees, weakened the inquiry.[19]

The report's evidentiary limits remain important to understanding its legal status: it investigated selected incidents, did not identify individual perpetrators, and did not claim to meet a criminal-trial standard of proof.[5] Its allegations of war crimes and possible crimes against humanity were therefore not criminal convictions.[5] Goldstone's 2011 reconsideration became a major part of the report's subsequent public controversy, but descriptions of that intervention as a complete withdrawal go beyond its formal effect.[17][4] The other members' insistence that the conclusions remained valid preserved a fundamental disagreement about how later Israeli investigations should affect the original assessment.[4][18]