Cablegate: Demarche Request On the Goldstone Report

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UNCLAS STATE 112828

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PREL PHUM PTER IS KPAL
SUBJECT: DEMARCHE REQUEST ON THE GOLDSTONE REPORT

REF: State 098567, USUN 0958

1. (U) This is an Action Request. Please see paragraph
three.

2. (SBU) Summary. On September 15, South African Justice
Richard Goldstone released the report of his fact-finding
Mission into alleged violations of human rights and
international humanitarian law in the fighting between Hamas
and Israel in the Gaza Strip from December 2008-January 2009
and other matters. While we acknowledge the serious
allegations raised in relation to the Gaza conflict, the USG
has serious concerns about the report, including its
unbalanced focus on Israeli actions, its overly sweeping legal
conclusions, and many of its recommendations. In response to
a request from the Palestinian observer and the Arab Group,
the General Assembly has scheduled a discussion of the report
starting on Wednesday, November 4 (possibly continuing on the
5th). The Arab Group, the OIC and others will present a
resolution for adoption by the Assembly at that time which is
likely to include elements unacceptable to the United States.
If adopted, these elements could severely undermine the Arab-
Israeli peace effort, and damage U.S. efforts to re-engage in
multilateral fora and to develop impartial mechanisms for the
consideration of human rights. End Summary.

3. (SBU) Action Request: Drawing on the background in paras 4-
8, the goals outlined in paras 9, and talking points in paras
10-13, Missions should demarche host governments on the U.S.
position on the upcoming General Assembly debate on November 4
on the Report of the UN Fact-Finding Mission on the Gaza
Conflict (the Goldstone Report). Missions should approach
host governments at a level sufficient to generate support for
the U.S. position, using the materials provided in a manner
designed to convince them to vote against any resolution that
would include counterproductive elements, as described below.

Background
-----------

4. (SBU) In January 2009, the UN Human Rights Council (HRC) in
Geneva held a Special Session on the December-January conflict
in the Gaza Strip between Israel and Hamas. It mandated a
fact-finding mission to investigate "all violations of
international human rights law and international humanitarian
law" by Israel. In April, the HRC President appointed South
African Justice Richard Goldstone to lead the mission. He
said he would investigate all parties to the conflict: Israel,
Hamas and Fatah, although the HRC did not formally change his
one-sided mandate. Separately, the United States has engaged
with Israel since January, 2009 to understand the
investigations they have underway and to stress the importance
of complete and credible inquiry into alleged allegations of
violations of human rights and international humanitarian law.
Due to the prominence of the conflict, capitals have been
engaged on this at a high level to include frequent statements
and interventions by Foreign Ministers and above (a factor
posts should take into account in making the demarche).

5. (SBU) On September 15, after conducting hearings in Gaza
and Geneva, Goldstone conveyed his final report to the HRC.
The USG has serious concerns about the report, including its
unbalanced focus on Israeli actions; its overly sweeping legal
conclusions; and many of its recommendations, some of which
must be resolved politically between the Israelis and the
Palestinians. Nonetheless, we attempted to negotiate with the
Palestinian delegation to the HRC to reshape an initial, one-
sided draft into a balanced, minimalist HRC resolution on the
report. However, the Arab Group, the NAM, the African Group
and the OIC (at the urging of the Palestinians) changed course
on October 2 and asked that the resolution be deferred until
the next regularly-scheduled HRC session in March, 2010.

6. (SBU) The Arab Group, the NAM, the African Group and the
OIC (again at the urging of the Palestinians) changed course
again on October 9, by calling for an HRC Special Session to
take up the report. While we did not support holding this
session, we did not actively oppose it; it took place on
October 15-16. At the Special Session, the HRC passed a
resolution endorsing the full report and its recommendations,
and referring the report to the General Assembly, but
explicitly citing only alleged violations by Israel. Neither
Hamas nor its tactic of intentionally launching rocket and
mortar attacks into civilian areas that places civilians at
severe risk were mentioned in the resolution. The resolution
passed by a vote of 25 to 6, with 11 abstentions and five
(evidently intentional) absences, by far the smallest margin
of support for a resolution dealing with Israel in the three
years the HRC has existed. Hungary, Italy, Netherlands,
Slovakia, and Ukraine joined the United States in voting
against the resolution. Belgium, Bosnia and Herzegovina,
Burkina Faso, Cameroon, Gabon, Japan, Mexico, Norway, the
Republic of Korea, Slovenia and Uruguay abstained. The UK,
France, Angola, Kyrgyzstan and Madagascar chose not to
register any vote. Argentina, Bahrain, Bangladesh, Bolivia,
Brazil, Chile, China, Cuba, Djibouti, Egypt, Ghana, India,
Indonesia, Jordan, Mauritius, Nicaragua, Nigeria, Pakistan,
Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal,
South Africa, and Zambia voted for the resolution. However,
in explaining their votes in favor, Russia and China clearly
indicated they did not support all of the report's
recommendations, particularly the proposals that it be
referred to the UN Security Council or the International
Criminal Court. Many other delegations expressed reservations
in Geneva through somewhat helpful statements that blunted
their yes votes - including India and Argentina.

7. (SBU) Simultaneous to developments in Geneva, in New York
we agreed to move forward a regularly-scheduled monthly UN
Security Council Open Debate on the Middle East from October
20 to October 14, to give the Arab Group and other members a
chance to express their views about the Goldstone report,
though there was virtually no support in the Council for
adding the Goldstone report to the regular UNSC agenda. The
session, held as a regularly scheduled open debate, gave many
NAM and OIC members the opportunity to express their views on
the report. Subsequently, in response to a request from the
Palestinian observer which was endorsed by the Arab Group, on
October 28, UN General Assembly President Ali Treki (Libya)
scheduled a discussion of the report in the Assembly starting
on Wednesday, November 4 (and possible continuing on the 5th).
We believe a General Assembly discussion was predictable, as
the HRC Special Session referred the report to the UNGA. In
light of the positions taken by Russia, China and some NAM
members at the HRC, there is a possibility for somewhat
greater support for the U.S. position in the Assembly than has
been the case in the past with regard to issues dealing with
Israel. In addition, while the Goldstone Report does not
ignore Israeli investigations, it summarily dismisses the
willingness of the Israeli government to carry out impartial
investigations. Since September 15, more information has
emerged on the nature and breadth of those investigations and
new ones have been initiated.

8. (SBU) The Arab Group, the OIC and others will present a
resolution for adoption by the Assembly on November 4 or 5.
They have not yet finalized their text, so we have not yet
seen a draft resolution, but according to several delegations
many elements now under discussion appear unacceptable because
they are entirely political in nature. This carries a great
risk of setting dangerous precedents and severely undermining
our efforts to re-launch Israeli-Palestinian negotiations on
final status issues. These include:

-- Attempting to direct or pressure the Security Council to
take up the matter. As noted above, many Council members are
already on record opposing adding the report to its agenda.
The Council is already seized of the situation in Gaza as part
of its monthly deliberations on the Middle East.

-- Establishing an UNGA committee or other body to monitor
domestic investigations. The capability of such a body to
pronounce impartially on the adequacy of ongoing criminal
investigations without the full cooperation of the parties is
highly questionable, as the rights of both the accusers and
those under investigation must be maintained, and much of the
relevant information to make an outside assessment may be
restricted by military necessity. The Gaza situation has not
been resolved, and there has been a noticeable increase in
rocket and mortar attacks from Gaza into Israel in recent
months. It is unrealistic to think that Hamas will make those
who launch the rockets available to a UN committee, that Gazan
civilians would risk their lives to share with such a body
information about Hamas' violations of international
humanitarian law, or that Israel would reveal the methods and
sources it uses to establish who is launching rockets at it
from specific locations, while the conflict is still ongoing.

-- Setting time-limits for Israeli or Palestinian domestic
investigations. Time limits on a legal process would be
artificial and might incentivize investigators to do a rush
job, or serve to delegitimize genuinely independent domestic
investigations that need time to hear evidence from all sides.
We should not put the parties under a gun to produce results.

-- Calling for the exercise of jurisdiction by other national
courts over GoI actions alleged in the report. Israel has the
democratic institutions to conduct credible investigations.
With such an UNGA endorsement in hand, some states might try
to initiate political show trials against Israeli leaders
designed intentionally to scuttle efforts to re-initiate peace
negotiations between Israel and the Palestinians. This could
be cited as a dubious precedent in the future that could be
used against officials from other countries. As a separate
matter, attempts to issue warrants for Israeli leaders in
Europe or elsewhere would also complicate the environment for
Middle East peace efforts.

-- Attempting to establish an International Tribunal. The GA
does not have the authority to impose such a tribunal and
indeed has never attempted to do so before. Without the
consent of the parties such a body would be unable to
function, and it too might be cited in the future as a
precedent that could be used against other countries.

-- Encouraging the Security Council to refer allegations in
the report to the International Criminal Court. The GA does
not have the authority to refer matters to the ICC itself. In
addition, neither Israel nor the Palestinian Authority (which
is not a state) are parties to the ICC. The Rome Statute
which established the ICC is clear on the need to respect the
principle of complementarity, which provides for
international-level legal action only after legal efforts at
the national level are exhausted. Israel's investigations are
ongoing.

-- Referring the matter to the International Court of Justice.
No purpose would be served by referring a question to the ICJ
for an Advisory Opinion while active investigations are
underway that could resolve those questions or render them
irrelevant.

-- Encouraging the convocation of the parties to the Fourth
Geneva Convention. The purpose would be to discuss the future
legality of munitions like white phosphorous (WP), which was
used by the Israelis during the Gaza conflict. This goes far
beyond questions related to the fighting in Gaza, and the
United States would not support such a step. WP is a lawful
conventional munition possessed by many armies worldwide.

-- Calling for sanctions against Israel. This would clearly
be a politicized step at a time when Israel is actively
investigating its own actions and the Palestinians are not.

-- Welcoming or endorsing the report or its recommendations in
full. Many of the elements described above are included in
the report. A blanket endorsement would open the door to many
negative initiatives.

9. (SBU) USG Goals. Our broad objectives are:

-- to prevent the passage of a General Assembly resolution
that includes elements detrimental to U.S. interests, or at
least to maximize the number of no votes and abstentions.
-- to promote accountability for violations of international
law.
-- to keep any future action on the Goldstone report out of
the Security Council, ICC, ICJ or other international venue.
-- to avoid US isolation, and minimize damage to the process
of U.S. reengagement in multilateral fora and our efforts to
break down regional bloc divisions.
-- to minimize potential damage to ongoing efforts to re-
launch permanent status negotiations between two viable
parties that would lead to the creation of an independent
Palestinian state.
-- to avoid, or at least minimize, political damage to the
Palestinian Authority and President Abbas, and any public
U.S.-Palestinian confrontation.

10. (U) Talking Points For All Recipients. Posts may deploy
these points or select material contained therein in the best
manner to meet USG objectives.

-- The President of the UN General Assembly has scheduled for
Wednesday, November 4, a debate on the Goldstone Report on the
fighting between Israel and Hamas last winter in Gaza. The
Arab Group and others will present a resolution for the
Assembly's consideration.

-- The rush to GA consideration will provide virtually no time
for most UN members to study and deliberate on this important
issue, which could set precedents for other conflicts,
potentially involving any UN member, including your own
country.

-- As members of the UN Human Rights Council, we have had time
to study the Goldstone report in detail and have serious
concerns about many of its aspects. It contains not only
numerous allegations about violations of human rights and
international humanitarian law that the report's authors admit
have not been fully corroborated, but also a sweeping set of
recommendations for UN and other international bodies whose
adoption would be without precedent in prior legal or
diplomatic practice.

-- Having noted the above, we understand and share the deep
concern of the international community regarding the fighting
last winter in Gaza. The United States is moving vigorously
to pursue comprehensive peace in the Middle East, including
the two-state solution.

-- The United States also strongly supports accountability --
including criminal investigations and punishments when cases
are proven -- for violations of international human rights and
humanitarian law. We have engaged with Israel to understand
the investigations they have underway and to stress the
importance of complete and credible inquiry into alleged
allegations of violations of human rights and international
humanitarian law. International law provides for
complementarity -- the opportunity for states to objectively
examine their own actions, and to prosecute violations when
the evidence warrants.

-- The Goldstone recommendations do not give sufficient weight
to the fact that Israel is currently investigating or has
already investigated most of the cases noted in the report,
and conducted five overarching investigations into different
aspects of its military operations. The Government of Israel
advises us that it currently has twenty separate investigative
teams looking into allegations, with provision for
Palestinians in Gaza to make complaints about Israeli actions
and give evidence, and for criminal prosecution if the
evidence warrants. The Israeli government was not previously
aware of twelve specific incidents covered in the Goldstone
report, and has stated that it forwarded these cases for
investigation upon learning of them.

-- Israel has the capacity and democratic institutions to
conduct investigations of this sort, and the United States
will continue to urge it to do so in an in-depth manner,
ensuring the investigators' full ability to pursue cases
wherever they lead.

-- We were not alone in having concerns about this matter when
a resolution endorsing the recommendations in the report --
that cited Israeli actions but did not mention Hamas at all --
was rushed before the Human Rights Council in a Special
Session on October 16. Others voted with us or abstained, or
cited their concerns about the reports' recommendations.

-- We are thus deeply concerned about possible elements the
General Assembly might adopt in a resolution, such as
referring the matter to other institutions, or even attemping
to create new ones. Several delegations have shared with us
their concern that such elements are being discussed by Arab
Group members and others in New York. These would seriously
undermine efforts towards peace and do nothing to encourage
actual accountability.

-- We urge your country to oppose any resolution that contains
any or all of the following elements:

Attempting to direct or pressure the Security Council to take
up the matter. As noted above, many Council members are
already on record opposing adding the report to its agenda.
The Council is already seized of the situation in Gaza as part
of its monthly deliberations on the Middle East.

Establishing an UNGA committee or other body to monitor
domestic investigations. Even with the best of intentions,
the capability of such a body to pronounce impartially on the
adequacy of ongoing criminal investigations without the full
cooperation of the parties is highly questionable, as the
rights of both the accusers and those under investigation must
be maintained, and much of the relevant information to make an
outside assessment may be restricted by military necessity.
The Gaza situation has not been resolved, and there has been a
noticeable increase in rocket and mortar attacks from Gaza
into Israel in recent months. It is unrealistic to think that
Hamas will make those who launch the rockets available to a UN
committee, that Gazan civilians would risk their lives to
share with such a body information about Hamas' violations of
international humanitarian law, or that Israel would reveal
the methods and sources it uses to establish who is launching
rockets at it and from where, while the conflict is still
ongoing.

Setting time-limits for Israeli or Palestinian domestic
investigations. Time limits on a legal process would be
artificial and might incentivize investigators to do a rush
job, or serve to delegitimize genuinely independent domestic
investigations that in the current environment need time to
hear evidence from all sides. We should not put the parties
under a gun to produce results.

Calling for the exercise of jurisdiction by other national
courts over GoI actions alleged in the report. Israel has the
democratic institutions to conduct credible investigations.
With such an UNGA endorsement in hand, some states might try
to initiate political show trials against Israeli leaders
designed intentionally to scuttle efforts to re-initiate peace
negotiations between Israel and the Palestinians. This could
be cited as a dubious precedent in the future, that could be
used against officials from other countries. As a separate
matter, attempts to issue warrants for Israeli leaders in
Europe or elsewhere would also complicate Middle East peace
efforts.

Attempting to establish an International Tribunal. The GA
does not have the authority to impose such a tribunal and
indeed has never attempted to do so before. Without the
consent of the parties such a body would be unable to
function, and it too might be cited in the future as a
precedent that could be used against other countries.

Encouraging the Security Council to refer allegations in the
report to the International Criminal Court. The GA does not
have the authority to refer matters to the ICC itself. In
addition, neither Israel nor the Palestinian Authority (which
is not a state) are parties to the ICC. The Rome Statute,
which established the ICC, is clear on the need to respect the
principle of complementarity, which provides for
international-level legal action only after legal efforts at
the national level are exhausted. Israel's investigations are
ongoing.

Referring the matter to the International Court of Justice.
No purpose would be served by referring a question to the ICJ
for an Advisory Opinion while active investigations are
underway that could resolve those questions or render them
moot.

Encouraging the convocation of the parties to the Fourth
Geneva Convention. The purpose would be to discuss the future
legality of munitions like white phosphorous (WP), which was
used by the Israelis during the Gaza conflict. This goes far
beyond questions related to the fighting in Gaza, and the
United States would not support such a step. WP is a lawful
conventional munition possessed by many armies worldwide.

Calling for sanctions against Israel. This would clearly be a
politicized step at a time when Israel is actively
investigating its own actions and the Palestinians are not.

Welcoming or endorsing the report or its recommendations in
full. Many of the elements described above are included in
the report. A blanket endorsement would open the door to many
negative initiatives.

-- We urge your country to join us in opposing these elements.
Your doing so would help to avoid setting precedents that can
affect us all, and help promote peace in the Middle East. We
urge you to convey an instruction to your mission in New York
to take this approach and to work closely with the U.S. and
other missions.

11. If Asked:

-- Among our principal concerns with possible General Assembly
action on the Goldstone report is the potential for damage to
ongoing efforts to re-launch permanent status negotiations
that would lead to the creation of an independent Palestinian
state.

-- Bringing about a comprehensive peace -- not only between
Israel and the Palestinians, but also between Israel and Syria
and Israel and Lebanon, with the full normalization of
relations between Israel and its neighbors -- is chief among
our goals in the Middle East. The resolution of the Israeli-
Palestinian conflict through the two-state solution is central
to our goal of comprehensive peace.

-- Special Envoy for Middle East Peace George Mitchell has
been working closely with Israeli and Palestinian leaders,
regional leaders and allies, our partners in the Quartet and
others. Progress is steadily and quietly being made, and the
President and his team will continue to approach this effort
with perseverance and determination.

-- Both in public and private, President Obama has made clear
that the negotiations should cover all permanent status issues
-- borders, security, Jerusalem and refugees. We seek to
create a dialogue that facilitates the compromises necessary
to ensure the long-term interests of both sides.

12. Only for Hungary, Italy, Netherlands, Slovakia, Ukraine,
Belgium, Bosnia and Herzegovina, Burkina Faso, Cameroon,
Gabon, Japan, Mexico, Norway, the Republic of Korea, Slovenia,
Uruguay, the UK, France, Angola, Madagascar, Kyrgyzstan,
Russia and China:

-- Your opposition to counterproductive elements is important
to us and to our shared efforts to promote peace in the Middle
East. We appreciate your opposition to problematic ideas in
Geneva, and hope this will continue in New York.

13. Only for Security Council members:

-- We do not see the Goldstone Report as an appropriate matter
for consideration of the Security Council.

-- We should make it plain to those trying to force a Security
Council action, that the Council chooses the matters it will
take up based on its mandate in the UN Charter to maintain
international peace and security.

14. Posts should reply by front channel cable to the
Department, infoing USUN New York, no later than, 12:00 noon
EST, Wednesday, November 4, noting host-government reaction to
the demarche. Please slug cables for IO/HR, Paul Kruchowski;
IO/UNP, Andrew Morrison and NEA/IPA, Jeffrey Giauque; and USUN
New York, Ellen Germain.
CLINTON

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