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Roundup on the Goldstone Controversy

[Justice Richard Goldstone. Image from Getty Images.] [Justice Richard Goldstone. Image from Getty Images.]

While the impact of Justice Goldstone’s op-ed on accountability and justice remains to be seen, one thing has already been made clear: his contentious and vague editorial has worked to place Israel’s Winter 2008/09 offensive back on center stage. Like Israel’s fatal attack on the Mavi Marmara in May 2010 that inspired heated debate on the legality of Israel’s Gaza blockade, Goldstone’s editorial has produced a watershed of commentary on Gaza’s ongoing submission to a debilitating blockade and the escalating drumbeats of a renewed Israeli attack on the 360 square mile Strip. Significantly, this media cycle has been just as intrigued by the editorial’s implications as it has been with its author’s emotional state.

Nearly every article responding to Goldstone’s op-ed makes the same two points: first, given the inadequacy of Israel’s domestic investigation, the basis of Goldstone’s reexamination is unclear and tenuous; and secondly, in all cases, the Report remains intact and the need for an international judicial inquiry is ever-more pressing.

The exception to this consistency in content has come from ardent Israel supporters who overlook the gaps in Goldstone’s analysis, take for granted that the op-ed amounts to a retraction, and dwell on the motivations for his change of heart. Abraham Bell, University of San Diego law professor, has been the most vocal of these supporters and has insisted that a primary motive for Goldstone’s so-called retraction was the Stanford Law School debate on the Goldstone Report which featured Justice Goldstone as a discussant. Bell has pitched his narrative to the Jerusalem Post, Haaretz, and the Jewish Daily Forward, while penning his own editorial in Foreign Policy where he makes the argument more plainly. Indeed the proximity of the debate to Goldstone’s editorial raises questions as to the relationship between the two, but Bell should be the first to recognize the distinction between correlation and causation. 

Goldstone Op-Ed Not Groundbreaking

Bell claims that the debate compelled Justice Goldstone to make an “admission of fault he had reportedly been unwilling to make in a draft op-ed submitted to the New York Times less than a week before the debate.” He continues by attempting to cast the contents of Goldstone’s op-ed as revelations rather than reiterations. However, aside from his comments that the Report would read differently had Israel participated with the Mission’s investigation and that he was naïve to believe that Hamas could adequately investigate war crimes allegations, Goldstone’s op-ed simply restates the Report’s conclusions. Consider the following claims that Bell makes and where they already appear in the 575-page Report or elsewhere:  

1. “…[T]he allegations were not based on evidence of Israeli motives, but, rather, on his team's presumptions in the absence of any hard evidence.”

Goldstone's Report: See Section B, Methodology, pp. 11-26

The Mission fully appreciates the importance of the presumption of innocence: the findings in the report do not subvert the operation of that principle. The findings do not attempt to identify the individuals responsible for the commission of offences nor do they pretend to reach the standard of proof applicable in criminal trials…In order to provide the parties concerned with an opportunity to submit additional relevant information and express their position and respond to allegations, the Mission also submitted comprehensive lists of questions to the Government of Israel, the Palestinian Authority and the Gaza authorities in advance of completing its analysis and findings. The Mission received replies from the Palestinian Authority and the Gaza authorities but not from Israel.

 

2. “Goldstone also admitted that Hamas is ‘an organization that has a policy to destroy the state of Israel’ and that Hamas should be called to account for its violations of the laws of war.”      

Goldstone's Report: See Section 20, Impact on civilians of rocket and mortar attacks by Palestinian armed groups on southern Israel pp. 103-110

The Mission has determined that the rockets and, to a lesser extent, mortars, fired by the Palestinian armed groups are incapable of being directed towards specific military objectives and were fired into areas where civilian populations are based. The Mission has further determined that these attacks constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity. Given the seeming inability of the Palestinian armed groups to direct the rockets and mortars towards specific targets and given the fact that the attacks have caused very little damage to Israeli military assets, the Mission finds that there is significant evidence to suggest that one of the primary purposes of the rocket and mortar attacks is to spread terror amongst the Israeli civilian population, a violation of international law.


3. “Finally, Goldstone noted that the U.N. Human Rights Council, which commissioned the report, has a ‘history of bias against Israel [that] cannot be doubted,’ and he denounced the council's refusal to address ‘heinous’ acts by Hamas against Israelis.”

Goldtone to the Jerusalem Post (July 2009):

I am fully aware of the skepticism with which many Israelis view the Human Rights Council and of the objections to the council paying more attention to the Middle East than any other region of the world…It is for that reason that I initially found the terms of the Human Rights Council resolution to have been an inappropriate basis for launching a fact finding mission into Operation Cast Lead, and at first I was not prepared to accept the invitation to head the mission…It was essential to expand the mandate to include the sustained rocket attack on civilians in southern Israel, as well as other facts in the period preceding the military operation of December-January, such as the sustained closure of the Gaza Strip," all of which must be "an integral part of the investigation.” 

Bell’s dubious attempt to claim responsibility for Goldstone’s editorial is further undercut by the record of the debate, which is available for public viewing

Bell is not alone in speculating about the Justice’s motives for “retracting” the Report. The Jewish Daily Forward pores over Goldstone’s relationship to his Jewish identity and his numerous conversations with disapproving Jewish-Zionist figures since September 2009 when the Mission released the Report. Unlike his critical Jewish counterparts Chomsky and Finkelstein, the article claims, Goldstone is not an “assimilated Jew” and is much more sensitive to criticism from the global Jewish community. The Forward article reads like a coming-of-age novella, intrigued as it is with Goldstone’s internal struggles as opposed to the substance of his editorial.

In a lucid and powerful analysis written for The Electronic Intifada, Professor Ilan Pappe also assumes that the op-ed amounts to a retraction, what he terms a “shameful u-turn.” However, whereas the Forward and Bell obsess over Goldstone’s psyche, Pappe examines the inherent contradictions of defending Zionism and demanding accountability for Palestinian human rights violations. He argues that the failure to criticize Zionism inevitably leads faint-hearted do-gooders to the same point: “that Israel can only be judged by its intentions [and] not the consequences of its deeds.” Pappe compares Goldstone’s re-evaluation to Israeli historian Benny Morris’s trajectory after publishing The Birth of the Palestinian Problem, when he “too cowered under pressure and asked to be re-admitted to the tribe.”

Goldstone Clarifies that his Op-Ed is Not a Retraction

Whatever the extent of his struggle with identity politics may be, the fact remains that Goldstone did not intend for his editorial to be a retraction. In an exclusive interview provided to the Associated Press, the Justice dispelled all speculation on the matter:

As appears from the Washington Post article, information subsequent to publication of the report did meet with the view that one correction should be made with regard to intentionality on the part of Israel…Further information as a result of domestic investigations could lead to further reconsideration, but as presently advised I have no reason to believe any part of the report needs to be reconsidered at this time. 

While other commentators have similarly found the timing of Goldstone’s editorial baffling and unwarranted, they do not accept that it amounts to a retraction, or in the words of Nimer Sultany there is no reason to “throw out the baby with the bathwater.”  Their analyses explore the laws of war, international accountability, evidentiary scrutiny, and the potential for a renewed attack on Gaza:  

On the facts: Israel’s investigation versus Goldstone’s claims

Adam Horowitz, "Goldstone op-ed praises Israeli investigation of Gaza war crimes, but UN committee paints a different picture." In this piece, Horowitz puts the findings of the Independent Committee of Experts into conversation with Goldstone’s assertion that the Israeli investigation of itself in Operation Cast Lead sheds new light on the Report’s findings. In particular, he explores the case of 11-year-old Majid Rabah, who the Israeli Army allegedly used as a human shield, as well as the case of the attack on the Sammouni home that killed 29 Palestinian civilians.

On the Laws of War

John Dugard, "Where now for the Goldstone Report?" The former Special Rapporteur to the Occupied Palestinian Territory explores the relevant international law to the concerns raised by the Goldstone op-ed. He makes clear that the editorial does not amount to an op-ed and even if it did, it does not suffice to retract the Report, which must 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 London School of Economics, Ms. Hina Jilani, an advocate of the Supreme Court of Pakistan, and Colonel Desmond Travers, formerly an officer in the Irish Defence Forces – have indicated that they do not share Goldstone's misgivings about the report.” Dugard also explains that killing in warfare need not be deliberate and intentional to amount to indiscriminate attacks, which are prohibited under the laws of armed conflict.

On international Accountability

Raji Sourani and Daniel Machover, "Accountability for war crimes remains priority after Goldstone 're-think.'" In their editorial, Machover and Sourani contend that the proper question is not whether the Goldstone Report is biased or politically motivated but rather whether the reconsideration of one finding affects the Report’s recommendations for accountability. They assert that it does not, and urge that the law be applied equally to Hamas and Israel. They emphasize that “effective scrutiny must become the priority. It has been proven that this is impossible domestically. The ICC is undoubtedly now the appropriate forum to investigate these cases and, if the evidence exists, to put named suspects on trial for specific offences.”

On a Renewed War on Gaza

Ali Abunimah, "Another war on Gaza?" Abunimah scrutinizes the escalation of attacks between Palestinian resistance forces in Gaza, including but not limited to Hamas, and Israel to illustrate a dismal picture of portending hostilities on the horizon. He compares the sequence of events to those that preceded Operation Cast Lead and warns that Goldstone’s op-ed may have loosened whatever restraints had hitherto been placed upon Israel.

UPDATE: On Thursday April 14, 2011, the three other members of the Goldstone Panel issued a statement to The Guardian affirming the in tact nature of the Goldstone Report and condemning calls for its retraction from the UN. Read the article by Hina Jilani, Christine Chinkin, and Desmond Travers here

Additional recommended readings

The Report of the Fact-Finding Mission to Gaza:

The Goldstone Report 

The Independent Committee of Experts Submissions to the Human Rights Council:

September 2010 

March 2011

The Israeli Domestic Investigations of itself in Operation Cast Lead:

July 2010

January 2011

The Laws of Armed Conflict:

The Geneva Conventions and their Additional Protocols

The Hague Regulations (1907)

Additional articles:

The Goldstone Chronicles,” Roger Cohen

Beyond Goldstone: A truer discussion about Israel, Hamas, and the Gaza conflict,” Jessica Montell 

Israeli intimidation brings shift in Gaza Report,” George Bisharat

Goldstone reconsideration undermines justice for Gaza,” Jonathan Cook

Reversal under pressure betrays Palestinians’ trust,” Nimer Sultany

Goldstone: An act of negligence," Noura Erakat

"The Retraction that wasn't," Omar Shakir and Catherine Baylin

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