Goldstone's Merits

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November 13, 2009

Judge Richard Goldstone should have been a familiar figure all over the world long before now. A South African jurist who took controversial stands and actions against Apartheid, and later served as chief prosecutor for international tribunals on Yugoslavia and Rwanda, Goldstone is no stranger to death threats or global atrocities. He has proven his mettle beyond doubt, over and over.

But his most famous moment, and the one for which he will, in the end, be remembered, will be his report on his investigation into Operation Cast Lead. That’s really a shame, because the now-infamous Goldstone Report was never going to have anything like the impact of his earlier activities.

The nature of anything controversial regarding Israel and the Palestinian Territories is that arguments heat up, people of different political views take sides, and they tend to stick to hard and fast positions because any sign of compromise is seized upon by the other side.

That certainly happened with Goldstone’s report. Arguments, both pro and con, have been unyielding and largely unreasonable. With the help of a friend and colleague here in Washington who works for a distinguished human rights organization, I attempt to untangle the Goldstone mess and try to see it for what it is, warts, shiny parts and all.

The Mandate

Not since the British rule Palestine has this term been used so often. The UN Human Rights Council issued a mandate for an investigation into Operation Cast Lead before it was over, and that mandate was limited to an investigation of Israeli crimes.

Judge Goldstone wrangled an agreement from the president of the Council to broaden the mandate. In fact, the broadened mandate, which allowed him to investigate all of the circumstances surrounding the war and include violations by both sides, was the one under which he worked.

The problem is that the original mandate was never formally rescinded. The Goldstone investigation and the report did in fact look into all of the actions it could, given the lack of cooperation by the Israeli government. But the fact that the mandate still officially stood meant not only that Israel had all the ammunition it needed to discredit the report, but also that the resulting recommendation from the UNHRC, despite a few last-minute changes that Goldstone managed to wrangle in, referred explicitly only to charges against Israel. The vague wording that would imply, to anyone thinking about it at all, that Hamas could also stand accused hardly conveys that the two sides were treated equally under the law.

Frankly, Goldstone, as a judge and former prosecutor, should have known better. He should have insisted that the original mandate be repealed and replaced with one that explicitly demanded that all belligerents in the conflict be subject to the same legal scrutiny.

Goldstone’s failure to do this has unleashed a flood of criticism in Israel and the United States. Supporters of the report have correctly argued that Judge Goldstone did not operate under the official mandate, and a fair reading of the 575-page report confirms this. But defenders of Goldstone have failed to deal with the issue of the mandate, and the fact that the resulting declaration from the UNHRC that was sent to the General Assembly specifically mentions Israel, but not Hamas.

That would have been different had the mandate been altered as it should have been, and it’s a real problem. It means that the mandate, as it stood, did in fact affect the output of the UNHRC. True, it didn’t affect the report itself. However, it matters that the request that came to the General Assembly was, once again, clearly biased against Israel. Goldstone’s efforts lessened this effect, but did not eliminate it, as his insistence on changing the mandate would have.


As it was, Goldstone was hampered. He was given much too short a period of time to thoroughly investigate Operation Cast Lead; his team included at least one person who had stated publicly that Israel had committed war crimes even before the war had ended; Israel refused to cooperate; and the investigation began months after the fighting had ended.

Given these already considerable obstacles, it boggles the mind that Goldstone and his team went beyond Cast Lead and, essentially, reported on 42 years of occupation. This was a serious error in judgment, and, in conjunction with the restraints Goldstone was already working with, seriously impacted the perception of his report’s credibility.

Goldstone himself has ended up in a war of words with Israel’s political establishment, most recently with President Shimon Peres. Why he would have provided more fodder for attacks against him by broadening his investigation beyond Gaza and the events of Cast Lead is unclear at best.

More overreaching can be seen in Goldstone’s flat statement that Israel, as a matter of policy, targeted civilians and civilian infrastructure. Indeed, it is true that the pattern of destruction he cites in his report raises this very disturbing question. But that’s all it does—raise it. Goldstone makes a flat judgment without proving his case, or even substantially supporting it. He’s a prosecutor by trade; he has to know better than that.

The Merits

Goldstone’s now famous quote, “If this was a court of law, nothing would be proven,” has been badly distorted. He was not criticizing his report with that statement, but merely pointing out that this was not a trial and that his job was merely to gather evidence. Goldstone’s job was not to convict or exonerate Israel. It was to investigate war crimes accusations raised against both Israel and Hamas during Operation Cast Lead, to see if a more thorough investigation, or even criminal charges were warranted. That’s why his main recommendation was that both Israel and the Palestinians conduct independent investigations and, should it be warranted, take punitive action based on those investigations.

The South African judge’s job was to gather prima facie evidence, and in fact, he did do that. The subsequent hue and cry, which Israel has been louder about, but which Hamas also engaged in, has diverted attention from the specific cases Goldstone and his team investigated, and which certainly raised serious questions about Israel’s conduct in Gaza.

The flaws in Goldstone’s report are many. For example, the report frequently decides “there is no other than conclusion” when a little imagination shows there could be. The report seems to gloss very lightly over accusations of Hamas intentionally situating themselves among civilians (he says “there is no evidence” noncommittally, but does not say what effort was made to uncover any).

But the report also raises very serious questions, while offering convincing justification for posing them. Goldstone himself has spoken frequently of the attack on the Al-Maqadmah mosque. Israeli military sources have offered their own rebuttal with possible reasons for the attack. This is precisely why an independent investigation of the incident is needed.

The Goldstone team also compiled compelling testimony concerning the Israel Defense Forces shooting of civilians waving white flags, using white phosphorous munitions in highly populated areas, attacking a UN-run school, and many other similarly troubling incidents.

Beyond a doubt, a serious, independent and credible Israeli investigation is warranted by such information.

Israel’s best interests

But more than that, such an investigation serves the interests of Israel in no uncertain terms. Long before Goldstone came along, Operation Cast Lead had seriously damaged Israel’s standing in the international community, including inspiring a serious decline in Israel’s image in the United States.

Israeli officers face the real threat of arrest and trial abroad under the principle of universal jurisdiction (which permits accused war criminals to be tried by other countries if their home country does not do so itself). Operation Cast Lead has severely strained Israel’s relations with key Muslim countries like Turkey, Egypt and Jordan. It has moved Israel much closer to international isolation.

Does it seem at all credible that Israel’s standing would be any worse if it carried out a sincere investigation of these accusations? When Israel last investigated something as severe, after the massacres at Sabra and Shatilla during the 1982 Lebanon War, Israeli jurists found serious fault with IDF officers up to and including the Minister of Defense at the time, Ariel Sharon. And that helped establish Israel’s bona fides as a country bound by the rule of law, a bona fides it is now rapidly losing.

It seems overwhelmingly likely that a serious investigation, one which includes the highest decision-making levels of the government, would come out with a damning report, but one which would also explain at least some of these accusations to the satisfaction of international law. At the very least, it would definitely leave Israel looking better than it does now.

Israel should have taken this step a long time ago. Now, even center-right Deputy PM Dan Meridor and arch-rightist Uzi Landau (Yisrael Beitenu) support conducting an independent investigation of Operation Cast Lead. The Goldstone Report, for all its faults, clearly made Israel take this more seriously. Imagine what might have been accomplished with a little more care.

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