The Goldstone Affair

Editor’s Note: An earlier version of the article below appeared in our May 2 print issue. Subscribers can download the PDF.

Judge Goldstone

From the moment the Goldstone Report was published in September 2009, its opponents have worked tirelessly to undermine it. The 452-page investigation of the 2008–09 Gaza conflict by a United Nations Human Rights Council fact-finding mission accused Israel and Hamas of war crimes for attacks on civilians, but its overall thrust was harshly critical of the Israeli onslaught, which took as many as 1,400 Palestinian lives, including those of more than 300 children. The US Congress denounced the report for allegedly denying Israel’s right of self-defense (it didn’t); Israeli Prime Minister Benjamin Netanyahu shortlisted the report, along with Hamas rockets and a nuclear-armed Iran, as one of the three main threats to the Jewish state; and Alan Dershowitz accused the report’s chief author, Richard Goldstone, of being a traitor to the Jewish people. As recently as March, Eli Yishai, Israel’s bellicose interior minister, wrote to Goldstone charging his report with giving “legitimacy” to terrorist organizations and “calm[ing] murderers without a conscience” when they murder children.

Then came the “reconsideration.” On April 1 Goldstone, a 72-year-old South African judge, published an op-ed in the Washington Post saying that Israeli army investigations of some 400 incidents during Operation Cast Lead had caused him to disavow a key assertion in the report: that Israel had a policy of deliberate attacks on civilians during the twenty-two-day conflict. “If I had known then what I know now, the Goldstone Report would have been a different document,” he wrote.

Within hours of Goldstone’s op-ed, those who had been gunning for the report all along gleefully pronounced its demise. They characterized the judge’s essay as a recantation, and they declared the report mortally flawed. Netanyahu demanded that the UN cancel the document. The State Department followed suit, with UN ambassador Susan Rice stating that she wanted the report simply to “disappear.” The Israel Action Network, a multi-million-dollar effort led by the Jewish Federations of North America to massage Israel’s image and rebut “delegitimization” efforts, promptly launched a campaign to circulate the op-ed to as many “opinion molders” as possible.

And yet, the Goldstone Report lives on. Not only have all efforts to derail it failed thus far but the report is arguably more relevant than ever. Just a few days before the judge’s “reconsideration,” the UN Human Rights Council gave the report new life by passing a resolution recommending that it be sent to the General Assembly and from there to the Security Council for possible referral to the International Criminal Court. And Goldstone’s op-ed itself has thrust the report, and its recommendations, back into the spotlight. “In my view, the Goldstone retreat, unfortunate for his overall reputation and legacy, has actually given the report, and its recommendation, a second public life, with renewed interest, and civil society engagement with a call for its implementation,” Richard Falk, the UN special rapporteur on Palestinian human rights, wrote in an e-mail. He later added, “It has made people more aware about the need for accountability.”

Eminent figures have stepped up to affirm the validity of the original document, including, most notably, the three commissioners who co-authored the report with Goldstone: retired Irish colonel Desmond Travers, Pakistani lawyer Hina Jilani, and legal scholar Christine Chinkin. In a devastating rebuke published in the Guardian on April 14, the three commissioners defended the validity of the report and dismissed critics who have sought to capitalize on Goldstone’s essay as cynically misrepresenting the facts.

“We concur in our view that there is no justification for any demand or expectation for reconsideration of the report as nothing of substance has appeared that would in any way change the context, findings or conclusions of that report with respect to any of the parties to the Gaza conflict,” they wrote in their statement. Further down they added, “Had we given in to pressures from any quarter to sanitize our conclusions, we would be doing a serious injustice to the hundreds of innocent civilians killed during the Gaza conflict, the thousands injured, and the hundreds of thousands whose lives continue to be deeply affected by the conflict and the blockade.”

Indeed, the largest lesson of the controversy has been that the world is not prepared to forget these hundreds of thousands of killed, injured and “deeply affected” civilians – or the report that documented their suffering. If Gaza was a contemporary Guernica, the report fit the battle by describing riveting horrors: the children forced to sleep next to their parents’ bodies for days on end as ambulances were denied access to neighborhoods; the 15-year-old boy whose mother sought to save him by sewing up the bullet hole in his chest with a needle sterilized in cologne; the mother and daughter, 65 and 37, shot and killed amid a crowd of civilians carrying white flags as they walked from a village in search of safe harbor; the student who calmly told Human Rights Council interviewers, “My legs were exploded away” by a shell that killed several members of his family. These images will haunt anyone who has read the report.

No less powerful is the moral vocabulary the report provided to describe the outrage of these events. This language was drawn from the realm of international law and carried the promise of legal repercussions for the wrongs committed—by Israel and Hamas—during Cast Lead. Thanks to the report there were names, and consequences, for the suffering inflicted on the people of Gaza, as well as the people of southern Israel. The attack on Gaza’s only functioning flour mill became an example of Israel’s intentional destruction of the area’s civilian infrastructure, while the siege of Gaza, which deprived civilians of the means of sustenance, was correctly classified as a form of collective punishment. Both are war crimes, and both require criminal prosecution of those who planned and orchestrated them.

This moral vocabulary has now permeated the global discourse about Israel-Palestine. Israel’s apparent impunity has galvanized the international Boycott, Divestment and Sanctions movement and inspired grassroots efforts to use universal jurisdiction to hold Israeli leaders accountable where the international community has failed to do so. This too is the achievement of the report: it has retold the story of the Israel-Palestine conflict and reshaped the contours of the debate.

There has been wide speculation on why Goldstone issued his “reconsideration.” Many have pointed to the unrelenting pressure on him—the ad hominem attacks, the accusations that he abetted terrorists, the meeting with members of the South African Jewish community that was designed to “puncture” his heart, according to the Forward. But the judge has offered no window on his motivation. Indeed, his reconsideration becomes all the more perplexing in light of his assertion that he still stands by the original report. “As presently advised I have no reason to believe any part of the report needs to be reconsidered at this time,” he told an AP reporter several days after his essay exploded across the Internet.

Equally confounding is the matter of the new “evidence” Goldstone adduces in his op-ed to suggest that Israel did not intentionally target civilians, evidence which his co-commissioners as well as legal experts say does not hold up under even the mildest examination.

Goldstone’s reconsideration hinges on his claim that Israel’s investigations into some of the most serious alleged crimes of Cast Lead have yielded new information that exonerates it of the charge that it targeted civilians as a matter of policy. To bolster this argument, he cites a March report by a UN Committee of Independent Experts, chaired by former New York Supreme Court justice Mary McGowan Davis which he says “recognized” the validity of Israel’s investigations. And yet, the committee makes no such claim. While commending Israel for initiating investigations, it offers a damning assessment of the quality of those inquiries. It points to Israel’s unwillingness, and structural inability, to investigate those who “designed, planned, ordered and oversaw Operation Cast Lead” as the greatest fault of the Israeli investigations to date.

As John Dugard, a former UN special rapporteur for the occupied territories and chair of a 2009 Arab League Independ-ent Fact Finding Committee on Gaza, wrote, “There are no new facts that exonerate Israel and that could possibly have led Goldstone to change his mind.” Dugard added that Goldstone’s op-ed misrepresented a key finding of the report when he said he no longer believed there was an intentional policy to target civilians. Such a policy was never the issue, Dugard points out; rather, it was Israel’s indiscriminate use of force that broke international law. “The principal accusation leveled at Israel,” he explains, “was that during its assault on Gaza, it used force indiscriminately in densely populated areas and was reckless about the foreseeable consequences of its actions, which resulted in at least 900 civilian deaths and 5,000 wounded.”

There can be no question that Goldstone’s op-ed has thrown up a considerable roadblock to those who hoped to see the report go to the International Criminal Court. “I was shocked and shattered,” said Norman Finkelstein, a longtime student of the conflict. “I immediately understood it was going to do terrible damage, and damage on many fronts. It’s the damage to truth and justice, it’s the damage to Jewish-Palestinian relations, it’s the damage to Israeli dissidents.”

Unfortunately, the willful misrepresentation continues. A bipartisan group of US senators has called for legislation urging the UN to rescind the report as a “libel” against Israel, while the State Department’s chief legal adviser has described the blocking of the Goldstone Report as an achievement right up there with setting up a UN commission to investigate Muammar el-Qaddafi’s human rights violations.

The report has survived more than eighteen months of assassination attempts, and it may weather the latest ones too. But if the attacks succeed, it will be a disaster for the principle of accountability in Israel and Palestine. As we write these words, tension is mounting once again between Israel and Hamas, and Israeli leaders like Tzipi Livni are threatening Gaza with a second Operation Cast Lead. Between April 7 and 11, nineteen Palestinians were killed and more than sixty injured. This fragile moment not only underscores the importance of the report and its central call—the need for accountability—but also the danger of ignoring its chief recommendations. As long as the crimes of Cast Lead go unpunished, we run the risk of seeing them repeated. Or as the Goldstone Report’s authors warn, “To deny modes of accountability reinforces impunity.”