Legal Analysis / Better late than never

The main recommendation in Richard Goldstone's report urges Israel to launch an independent inquiry into the "harsh violations" of international humanitarian law during the fighting in Gaza.

This raises the need to clarify once again what the report describes as a disproportional Israeli attack deliberately designed "to punish, humiliate and terrorize a civilian population."

Regardless of Israel's official response that the report has no grounding in reality, the question is whether Israel conducted an independent and objective investigation into the claims that the Israel Defense Forces committed unjust acts in Gaza that harmed civilians.

The Goldstone Commission's findings cannot be completely valid, mainly because Israel did not cooperate with the panel. This stance appears problematic, mainly in view of Goldstone's international standing.

Gazan witnesses who testified before the commission were probably subjected to Hamas threats. This apparently troubled Goldstone himself, for he called for further investigation.

Since Israel refused to cooperate, the commission was unable to deal thoroughly with the Palestinian terror campaign waged against southern Israeli communities in the eight years before Operation Cast Lead, which led to the deaths of 1,100 Israelis.

Israel's refusal to cooperate in the past with the International Court of Justice in The Hague, which issued an advisory opinion about the separation fence in July 2004, contributed to that court's one-sided view of the situation.

Israel must decide whether to investigate the events that took place during the war in Gaza, as described in the Goldstone report.

In 1982, the government set up a state commission to investigate the massacre in the Sabra and Chatila refugee camps only after internal and international pressure. The Kahan Commission, headed by then-Supreme Court president Yitzhak Kahan, gained worldwide respect and led to the world's acceptance that the massacre itself was not committed by the IDF, which was only indirectly responsible for what had happened.

Ehud Olmert's government refused to set up a state inquiry commission to investigate the Second Lebanon War, mainly because the Supreme Court president would appoint its members. The cabinet instead set up an investigation committee headed by retired judge Eliyahu Winograd to probe the war.

It appears that a state inquiry commission, appointed by the Supreme Court president, is the only body that the international community and the Israeli public would accept to probe the war in Gaza.

Were the Supreme Court president to appointing retired justices of international repute, such as Aharon Barak or Meir Shamgar, it could give the commission, its findings and recommendations, substantial weight.

The Goldstone report stipulates that the Security Council should examine the report and complain to the ICJ only if Israel and the Palestinian Authority fail to set up an independent inquiry panel.

There is no doubt that the army's internal investigations cannot substitute for an objective, neutral independent investigation. Such a probe can be conducted only by an independent inquiry committee. Its findings and conclusions could lead to a criminal investigation and indictments in specific cases, but such a committee's report in itself is not judicial evidence.