Dr. Goldstone and Mr. Hide (with an "i")
By now, and under sustained, vicious and inhumane pressure by Israel and its lobby groups in South Africa, the US and elsewhere, Goldstone's ideological commitment to Israel and Zionism has won over his relatively professional commitment, making him lose any veneer of respectability or credibility.
The Washington Post, 01/04/2011
Goldstone has always been a Zionist with deep emotional ties to Israel and, consequently, a very problematic tendency to let it off the hook on some of the most serious evidence of war crimes during its attack on Gaza 2008-2009. I've personally always alluded to his bias in my talks, ever since the report was published, albeit in a diplomatic and nuanced way.
Of all the biased procedures followed and conclusions reached in the Report, I shall cite just one that should make any moral person's blood boil (page 13):
"37. ...The Mission acknowledges the significant efforts made by Israel to issue warnings through telephone calls, leaflets and radio broadcasts and accepts that in some cases, particularly when the warnings were sufficiently specific, they encouraged residents to leave an area and get out of harms way. However, the Mission also notes factors that significantly undermined the effectiveness of the warnings issued. These include the lack of specificity and thus credibility of many pre-recorded phone messages and leaflets. The credibility of instructions to move to city centres for safety was also diminished by the fact that the city centres themselves had been the subject of intense attacks during the air phase of the military operations.
The Mission also examined the practice of dropping lighter explosives on roofs (so-called “roof knocking”). It concludes that this technique is not effective as a warning and constitutes a form of attack against the civilians inhabiting the building.
Finally, the Mission stresses that the fact that a warning was issued does not relieve a commander and his subordinates of taking all other feasible measures to distinguish between civilians and combatants."
Imagine if such "early warning" techniques of "roof knocking" were to be used against Israeli civilian buildings to "encourage" residents to leave for a safer place before bombing the building! Would Goldstone have described that as "not effective" or merely a "form of attack against the civilians inhabiting the building"?! Given the fact that the Report itself acknowledges that civilians had NO REFUGE to escape to and that willful killings were actually committed by Israeli forces against many Palestinian civilians whose buildings were bombed over their heads because of their failure to heed the Israeli army's humane "roof knocking," is this the most accurate and legally precise description of this crime that such a luminous judge can issue?
By now, and under sustained, vicious and inhumane pressure by Israel and its lobby groups in South Africa, the US and elsewhere, Goldstone's ideological commitment to Israel and Zionism has won over his relatively professional commitment, making him lose any veneer of respectability or credibility. His argument in the Washington Post op-ed below takes the Israeli investigation's claims as truths, more or less, ignoring the conclusion that he and his colleagues who produced the Report have reached regarding Israel's justice system. Referring to "structural flaws" in the so-called Israeli justice system, the Goldstone report concluded that Israel cannot be trusted to administer justice according to international standards [Goldstone Report, paragraph 1756] Here's the exact clause:
1756. After reviewing Israel’s system of investigation and prosecution of serious violations of human rights and humanitarian law, in particular of suspected war crimes and crimes against humanity, the Mission found major structural flaws that in its view make the system inconsistent with international standards. With military “operational debriefings” at the core of the system, there is the absence of any effective and impartial investigation mechanism and victims of such alleged violations are deprived of any effective or prompt remedy. Furthermore, such investigations being internal to the Israeli military authority, do not comply with international standards of independence and impartiality. The Mission believes that the few investigations conducted by the Israeli authorities on alleged serious violations of international human rights and humanitarian law and, in particular, alleged war crimes, in the context of the military operations in Gaza between 27 December 2008 and 18 January 2009, are affected by the defects in the system, have been unduly delayed despite the gravity of the allegations, and, therefore, lack the required credibility and conformity with international standards. The Mission is concerned that investigations of relatively less serious violations that the GOI claims to be investigating have also been unduly protracted.
Has any of that changed or only its author's commitment to the truth?
To his credit, from the very beginning, Goldstone was reluctant to take this UN job, arguing that the issues involved in this investigation were "deeply charged and politically loaded." Indeed! Someone should have heeded his advice!
Goldstone was from the start the wrong choice for leading this investigation, given his political and ideological allegiance to Israel. Imagine, for instance, if the UN were to select an overt supporter of Iran -- who also happens to be a Shiite Muslim -- to head a UN investigation of allegations of Iranian violations of international law in crushing demonstrations last year!
Furthermore, the Goldstone report added little new evidence to what had already been very well documented by Amnesty International, Human Rights Watch, UN officials on the ground, leading Palestinian human rights organizations and experienced journalists. As UN Special Rapporteur and leading international law expert Prof. Richard Falk writes:
"Perhaps, most damning of all the material available before the Goldstone report was the publication of a document entitled 'Breaking the Silence,' containing commentaries by 30 members of the Israeli army who had taken part in Operation Cast Lead (the Israeli official name for the Gaza war). These soldiers spoke movingly about the loose rules of engagement issued by their commanders that help explain why so little care was taken to avoid civilian casualties. The sense emerges from the testimony of these Israeli soldiers who were in no sense critical of Israel or even of the Gaza war as such, that Israeli policy emerged out of a combination of efforts 'to teach the people of Gaza a lesson for their support of Hamas' and to keep Israeli military casualties as close to zero as possible even if meant massive death and destruction for innocent Palestinians."
Despite welcoming the report and praising its many positives and its authors' uprightness at the time of its issuance, Falk accurately describes Goldstone as "deeply sympathetic to Israel" and the Report as giving Israel "the benefit of the doubt" in key areas. He presents in the article cited above devastating evidence of Goldstone's political bias:
“Arguably, [the Report] was more sensitive to Israel's contentions that Hamas was guilty of war crimes by firing rockets into its territory than earlier reports had been. And in many ways the Goldstone report endorses the misleading main line of the Israeli narrative by assuming that Israel was acting in self-defense against a terrorist adversary. The report does describe the success of the ceasefire with Hamas that had cut violence in southern Israel to very low levels, and attributes its disruption to Israel's attack on 4 November 2008, but nowhere does it make the inference that would seem to follow, that the Israeli attacks were an instance of the international crime of aggression. Instead, the report focuses its criticism on Israel's excessive and indiscriminate uses of force. ...
... the report takes for granted the dubious proposition that Israel was entitled to act against Gaza in self-defense, thereby excluding inquiry into whether crimes against the peace in the form of aggression had taken place by the launching of the attack. In this respect, although the report takes notice of the temporary ceasefire that had cut the rocket fire directed at Israel practically to zero in the months preceding the attacks, it seems to avoid drawing any legal conclusions as to the bearing of this context in which the Gaza war was initiated. The report also ignores Hamas' repeated efforts to extend the ceasefire indefinitely provided Israel lifted its unlawful blockade of Gaza. Israel disregarded this seemingly available diplomatic alternative to war to achieve security on its borders. Recourse to war, even if the facts were to justify self-defense, is according to international law, a last resort. By ignoring Israel's initiation of a one-sided war the Goldstone report implicitly accepts the dubious central premise of Operation Cast Lead, and avoids making a finding of aggression.
Also disappointing was the failure of the report to comment upon the Israeli denial of a refugee option to the civilian population trapped in the tiny, crowded combat zone that constitutes the Gaza Strip. Israel closed all crossings during the period of the Gaza war, allowing only Gaza residents with foreign passports to leave. It is rare in modern warfare that civilians are not given the option to become refugees. Although there is no specific provision of the laws of war requiring a state at war to allow civilians to leave the combat zone, it seems like an elementary humanitarian requirement, and should at least have been mentioned either as part of customary international law or as a gap in the law that should be filled. The importance of this issue is reinforced by many accounts of the widespread post-traumatic stress experienced by the civilians in Gaza, especially children, who comprise 53 percent of the population. One might also notice that the report accords considerable attention to the one Israeli soldier held prisoner by Hamas in Gaza, recommending his release on humanitarian grounds, while making only a very general recommendation that Israel release some of the thousands of Palestinians being held under conditions of harsh detention, suggesting that children especially should be released."
One can only conclude that the UN made a mistake by appointing Goldstone to lead this investigation, given his obvious and explicit predispositions and biases. It should fix it now, especially after this damaging, obviously political reversal, by commissioning a new, neutral judge or group of international law experts to investigate Goldstone's pathetically weak attempt here to exonerate Israel despite the mass of evidence compiled condemning it.
Dr. Goldstone has turned into Mr. Hide, shamelessly attempting to retrospectively conceal and whitewash Israel's war crimes, sacrificing any judicial or moral integrity he may have once had, all to appease Zionist groups that strove to excommunicate him, more or less. The blood of hundreds of Palestinians killed in Gaza, including hundreds of children, during the Israeli massacre is on Goldstone's hands now, not just Israel's. The Goldstone Report, as flawed and biased towards Israel as it is, will not go down to the dustbin of history; the credibility of and respect for its main author may, though.
Reconsidering the Goldstone Report on Israel and war crimes
Richard Goldstone, Friday 01, April
We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.
The final report by the U.N. committee of independent experts -chaired by former New York judge Mary McGowan Davis- that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”
Our report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying -its rockets were purposefully and indiscriminately aimed at civilian targets.
The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
While I welcome Israel’s investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum. Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.
Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).
As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.
Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government. Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.
Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.
In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.
I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous “lessons learned” and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas. The Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions -perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.
Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.
The writer, a retired justice of the Constitutional Court of South Africa and former chief prosecutor of the U.N. International Criminal Tribunals for the former Yugoslavia and Rwanda, chaired the U.N. fact-finding mission on the Gaza conflict.