The Weakness and Shame of Goldstone A lot of hot air, some of which is below, has been devoted to why Richard Goldstone has effectively ditched his own report on Israel’s war crimes in Gaza. Omar Barghouti, of PACBI, the Palestinian and Academic Boycott Israel group, sent me and others an e-mail entitled ‘Dr Goldstone and Mr Hide’ (the misspelling was deliberate). Omar wrote detailing how the original report has been biased against the Palestinians: I have had an exchange with Omar Barghouti of PACBI, the Campaign for the Academic and Cultural Boycott of Israel, whose argument is that it is all really because of Goldstone’s Zionist politics. Goldstone should never have been appointed, given he was a Zionist. Omar’s rejects my suggestion that Goldstone’s Zionist politics are not the main explanation for his reversal so much as the pressure that was put upon him, including his family. It reached the stage where he at one stage couldn’t attend the bar mitzvah of his nephew. This together with his establishment politics are the explanation. In a sense it is a chicken and egg situation because of course if Goldstone hadn’t been a Zionist or pro-imperialist he wouldn’t have been appointed in the first place. But there seems little point in indulging in a textual analysis of the Goldstone Report. Hamas, which originally rejected the Report, woke up and then accepted it because they knew that the criticisms of them were minor in comparison with the thrust of the Report. Likewise the Palestinian Authority was castigated because it withdrew a resolution endorsing Goldstone. It seems like sour grapes to now go back over the Goldstone Report and say ‘we told you so’. This is hindsight and not very useful. It is not the inadequacies of the Goldstone Report or indeed the political inadequacies of Goldstone himself that is the explanation. It is the vicious concerted campaign by Israel’s propagandists and hasbara merchants, not least against Goldstone himself, a man who is reported below as being broken by the affair, given that the Zionist swine didn’t attack him politically but via his family, friends and personal associations. Tony Greenstein Omar writes that:

‘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. Omar

In short, there are no new facts which could possibly have lead Richard Goldstone to change his mind. In an op-ed in the Washington Post Richard Goldstone, former South African Constitutional Court judge and Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, expresses misgivings about the central finding of the UN Human Rights Council Fact Finding Mission Report on the Gaza Conflict of 2008-9 (named after its chairman, “the Goldstone report”) that Israel’s indiscriminate attacks on civilians were intentional. The op-ed makes strange reading. It states that the Goldstone report would have been a different document “had I known then what I know now” but fails to disclose any information that seriously challenges the findings of the Goldstone Report. It claims that investigations published by the Israeli military and recognised by a follow-up UN Committee Report chaired by Judge Mary McGowan Davis, which appeared in March, “indicate that civilians were not intentionally targeted as a matter of policy”, but the McGowan Davis report contains absolutely no such “indication” and instead seriously questions Israel’s investigations, finding them to be lacking in impartiality, promptness and transparency. Goldstone expresses “confidence” that the officer responsible for perhaps the most serious atrocity of Operation Cast Lead (Israel’s codename for its assault on Gaza) — the killing of 29 members of the al-Samouni family — will be properly punished by Israel despite the fact that the McGowan Davis report provides a critical assessment of Israel’s handling of the investigation into this killing. Finally he claims that the McGowan Davis report finds that Israel has carried out investigations “to a significant degree”, but in fact this report paints a very different picture of Israel’s investigations of 400 incidents which have resulted in two convictions, one for theft of a credit card, resulting in a sentence of seven months imprisonment and another for using a Palestinian child as a human shield which resulted in a suspended sentence of three months! In short, there are no new facts which exonerate Israel and which could possibly have led Goldstone to change his mind. What made him change his mind therefore remains a closely guarded secret. The Goldstone report was not the only fact-finding report on Operation Cast Lead. Amnesty International, Human Rights Watch and the League of Arab States (whose mission I chaired) all produced thorough reports on the conflict. In all reports, including the Goldstone report, there were accounts of the killings of civilians by Israel Defense Forces (IDF) in a cold, calculated and deliberate manner. But the principal accusation levelled at Israel was that in its assault on Gaza it used force indiscriminately in densely populated areas and was reckless as to the foreseeable consequences of it actions which resulted in at least 900 civilian deaths and 5,000 wounded. In terms of the Rome Statute of the International Criminal Court it is a war crime to intentionally direct attacks against a civilian population (article 8(2)(b)(i)). Such an intention need not be premeditated: it suffices if the person engaging in such action meant to cause the consequence of his action or “is aware that it will occur in the ordinary course of events”(article 30). Goldstone’s op-ed may be interpreted to mean that he is now satisfied (although there is no evidence to support this) that Israel did not as a matter of policy deliberately and in a premeditated manner target civilians and that where the calculated killing of civilians occurred this was without the blessing of the Israeli military and political leadership. But he could not possibly have meant that Israel did not “intentionally target civilians as a matter of policy” in the legal sense of intention. That Israel’s assault was conducted in an indiscriminate manner with full knowledge that its consequences would be the killing and wounding of civilians is a matter of public record fully substantiated by the Goldstone Report and other equally credible reports. In his op-ed Goldstone declares that Hamas’s indiscriminate firing of rockets into Israel, which resulted in the killing of four civilians, was an “intentional” targeting of civilians and consequently a war crime. But how he can suggest that the indiscriminate bombing and shooting of Palestinians in Gaza by the IDF, which resulted in nearly a thousand civilian deaths, was not “intentional” is a mystery. Goldstone does not, like his critics, describe his op-ed piece as a retraction of the Goldstone report. This is not surprising. Richard Goldstone is a former judge and he knows full well that a Fact Finding Report by four persons, of which he was only one, like the judgment of a court of law, cannot be changed by the subsequent reflections of a single member of the committee. This can be done only by the full committee itself with the approval of the body that established the Fact Finding Mission – the UN Human Rights Council. And this is highly unlikely in view of the fact that the three other members of the Committee – Professor Christine Chinkin of the LSE, Ms Hina Jilani, an advocate of the Supreme Court of Pakistan and Colonel Desmond Travers, formerly an officer in the Irish Defence Force – have indicated that they do not share Goldstone’s misgivings about the report. Last month the Goldstone report was referred to the General Assembly of the United Nations by the Human Rights Council with the request that it be referred by the Assembly to the Security Council and that the Security Council submit the matter to the prosecutor of the International Criminal Court, as it has done in the cases of Darfur and Libya. Doubtless the General Assembly will refer the Goldstone report to the Security Council, despite Goldstone’s op-ed, but it will end there as the customary United States veto will ensure that Israel remains unaccountable. The Goldstone report is a historical milestone. It is a credible, reasoned, comprehensive and thoroughly researched account of atrocities — war crimes and crimes against humanity — committed by Israel in the course of Operation Cast Lead and of war crimes committed by Hamas in the indiscriminate firing of rockets into Israel. It is a serious attempt to secure the accountability of a state that has for too long been allowed by the West to behave in a lawless manner. That the credibility of the Goldstone report has been undermined by Richard Goldstone’s strange op-ed in the Washington Post cannot be denied. Although the Report was authored by four experts with the backing of a team from the office of the High Commissioner for Human Rights it has undoubtedly come to be associated with the name of Richard Goldstone. Inevitable the misgivings he has expressed about his own role in the Report will weaken its impact as an historical record of Operation Cast Lead. Already the Israeli Government has expressed delight at what it construes to be a retraction of the Report and demanded both a contrite apology from Goldstone and a refutation of the Report by the United Nations. Predictably the US Department of State has welcomed Goldstone`s op-ed and one fears that European governments will find in it an excuse to justify their continued support for Israel. Richard Goldstone has devoted much of his life to the cause of accountability for international crimes. It is sad that this champion of accountability and international criminal justice should abandon this cause in such an ill-considered but nevertheless extremely harmful op-ed. John Dugard is Professor of Law, University of Pretoria; Emeritus Professor, University of Leiden; former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory.

LONDON — We have a new verb, “to Goldstone.” Its meaning: To make a finding, and then partially retract it for uncertain motive. Etymology: the strange actions of a respected South African Jewish jurist under intense pressure from Israel, the U.S. Congress and world Jewish groups. Richard Goldstone is an author of the “Goldstone Report,” an investigation of Israel’s military campaign in Gaza between December 2008 and January 2009. It found that Israel had engaged in a “deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population,” for which responsibility lay “in the first place with those who designed, planned, ordered and oversaw the operations.” It said both Israel and Hamas may have committed crimes against humanity in a conflict that saw a ratio of about 100 Palestinian dead (including many children) for every one Israeli. Now Goldstone’s volte-face appears in the form of a Washington Post op-ed. It’s a bizarre effort. He says his report would have been different “if I had known then what I know now.” The core difference the judge identifies is that he’s now convinced Gaza “civilians were not intentionally targeted as a matter of policy.” His shift is attributed to the findings of a follow-up report by a U.N. committee of independent experts chaired by Mary McGowan Davis, a former New York judge, and what is “recognized” therein about Israeli military investigations. Well, Goldstone and I have not been reading the same report. McGowan Davis is in fact deeply critical of those Israeli investigations — their tardiness, leniency, lack of transparency and flawed structure. Her report — stymied by lack of access to Israel, Gaza or the West Bank — contains no new information I can see that might buttress a change of heart. On the core issue of intentionality, it declares: “There is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.” It says Israel has not adequately answered the Goldstone Report’s allegations about the “design and implementation of the Gaza operations” or its “objectives and targets.” Victims on both sides, McGowan Davis argues, can expect “no genuine accountability and no justice.” In short there is a mystery here. Goldstone has moved but the evidence has not, really. That raises the issue of whether the jurist buckled under pressure so unrelenting it almost got him barred from his grandson’s bar mitzvah in South Africa. Is this more a matter of judicial cojones than coherence? The fact that Hamas has not conducted any investigation into its unconscionable attacks on southern Israel — rockets and mortars still fall — is appalling if unsurprising. Goldstone makes much of this. But it does not change the nature of what Israel did in Gaza, nor allay the McGowan Davis concerns about Israel’s investigative failings. Goldstone, a Jew who takes his Jewishness seriously, has been pilloried by Israel. He fell afoul, as perhaps no other, of the siege mentality of a nation controlling the lives of millions of Palestinians but unsure what to do with them or with the world’s growing disavowal of this corrosive dominion that humiliates its victims and eats into the soul of its masters. The charges cascaded: He was a “self-hating Jew,” a hypocrite, a traitor. For Alan Dershowitz he was “despicable.” For Benjamin Netanyahu, the Israeli prime minister, Goldstone was up there with the Iranian nuclear program and Hamas rockets as one of Israel’s “three major strategic challenges.” Theories already abound on the Goldstone psyche. It was an emotional meeting last year with the South African Jewish Board of Deputies that set him on the retraction road. No, it was a bruising debate last month at Stanford University. No, it was a rightist Israeli minister telling him his report fueled those who knifed West Bank settlers. He was “broken,” one friend suggests. I don’t know. I asked Goldstone. He responded in an e-mail that he was declining “media interviews.” I do know this: The contortions of his about-face are considerable. Goldstone expresses confidence that the Israeli officer responsible for the killing of 29 members of the al-Samouni family will be properly punished. Yet the McGowan Davis report is critical of this investigation and notes that “no decision had been made as to whether or not the officer would stand trial.” It also notes that more than a third of the 36 Gaza incidents identified in the Goldstone Report “are still unresolved or unclear.” There have been just two convictions — and the one for credit card theft brought a more severe sentence than use of a Palestinian child as a human shield! And this gives Goldstone confidence? Israel is celebrating what it calls a vindication. It is preparing to welcome Goldstone. It is demanding nullification of the report, even though Goldstone is only one of its four authors. Meanwhile the facts remain: the 1,400 plus Palestinian dead, the 13 Israelis killed, the devastation, the Hamas rockets — and the need for credible investigation of what all evidence suggests were large-scale, indiscriminate, unlawful Israeli attacks in Gaza, as well as Hamas’ crimes against civilians. To “Goldstone”: (Colloq.) To sow confusion, hide a secret, create havoc.