Has Goldstone really recanted? And what is the true impact of his Washington Post op-ed?
Apr 2nd 2011
“If I had known then what I know now, the Goldstone Report would have been a different document.”
The pro-Israel Twittersphere, Facebook, blogosphere and the Israeli Prime Minister have been ablaze today with news of, and reactions to, a Washington Post op-ed by Judge Richard Goldstone, the eponymous author of the UN report into Operation Cast Lead, Israel’s incursion into the Gaza Strip in December 2008.
You may recall that this report was commissioned by the UN Human Rights Council, and, as Goldstone says himself, its purpose was: “…to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.”
Yet, the report, completed in just a few weeks, whose job was to find “facts”, miserably failed to do so to an extent which meant that its recommendations found that Israel and Hamas may have committed war crimes.
The most libellous conclusion of the report was that Israel had deliberately targeted civilians. Hamas’ actions were given a few paragraphs whilst several incidents were used to show that Israel had acted illegally or potentially illegally.
The report has since been used by every Israel and Jew-hater, every left-wing Hamas groupie, the governments of both friendly and hostile nations and the worldwide media to back up their claims that Israel is a rogue criminal state that targets civilians, uses munitions illegally, uses civilians as human shields.
Very few people have read the report but thousands uses it as an accusatory instrument with which to bash Israel.
Indeed, in the UK, the position of visiting Israeli politicians and soldiers has been precarious because the law of Universal Jurisdiction, currently under review, was being wielded with the comfort of knowing that alleged Israeli war crimes were imminent because of this report.
It is a great source of succour and smugness to the BDS organisations who would Boycott, Sanction and Disinvest from Israel.
In other words, the report whose findings were rejected by Israel and its supporters, had become a weapon of Israel’s enemies who could quote the fact that the UN itself regarded Israel as a war criminal.
The Goldstone Report had become, therefore, a form of modern Blood Libel used by people who had never read it to accuse Israelis of crimes.
Let’s now dissect Goldstone’s supposed retraction and see what he actually said rather than what Israel supporters (and I include myself in that group) would wish that he said or favourably interpret what he said to match their own views, opinions and bias. In doing so let’s try to avoid too much bombast or self-righteous cooing.
So it begins.
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.
Goldstone’s opening statement is already disingenuous. Of course we know more. This is because instead of the rush to judgement commissioned by the UNHRC, a body dominated by an anti-Israel block, Israel has painstakingly investigated the plethora of incidents reported by Goldstone and by Palestinians living in the Gaza Strip.
We don’t know more because the truth has come to light by some miracle, it has come to light because Israel took time and proper juridical care to investigate, to recommend, to prosecute and, indeed, to rebut.
Israel would have investigated anyway. It was not coerced or shamed into it.
Hamas, on the other hand, did nothing except flatly deny any and every accusation against it.
This is supported by the next paragraph in the article:
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.
Yet Hamas never really figured in the aftermath of the Report, all focus was on Israel. Why? Because “it goes without saying” that Hamas are criminals, according to Goldstone. We all know they are terrorists so there’s not much point going after them. So put Israel under the microscope and see what dirt you can dig up.
But it is precisely the behaviour of Hamas that the Commission should have emphasised and pursued in the international courts.
Surely any commission with a brief from what is supposed to be the word’s premier Human Rights watchdog should be persecuting the self-evident criminals. It should be challenging those countries that support it. It should purge its committees and councils of those that fund and support these criminals.
Instead, all we get is a shrug of the shoulders and a “what do you expect”.
But from Israel they expect a whole lot more and are prepared to pursue Israel, if necessary, in the world court, to damage its reputation, to assist the delegitimisers and effectively to connive with Hamas and other groups whose whole raison d’etre is the destruction of Israel.
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.
So lets read this statement from a world renowned Judge and Human Rights prosecutor.
His commission “had no evidence on which to draw any other reasonable conclusion”. In other words guilty until proven innocent.
This is part of the basis of this commissions findings; because they could not prove the accused was innocent, he must be guilty. What court in the world operates on this principle? This from one of the world’s top practitioners of international jurisprudence. Here he is actually writing that he agreed to go along with his team of predisposed Israel-bashers and find that Israel was guilty until proven innocent. This is beyond belief.
Now he gives us an example of why he and his commission would come to such a piece of legal claptrap.
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.
But the sentence I have highlighted above is exactly what the commission did not do. It jumped to the conclusion that this and many other actions merited little investigation because it was so patent that Israel had acted criminally.
All the commission needed to say, (since there was a commission, however much I deplore the fact) in this case and all others where evidence was sparse or lacking was something like this:
“The Fact Finding commission recommends that Israel explains Action X and reports back to the the UN in order to mitigate accusations of war crimes.”
I’m no international lawyer, but it does seem to me that if you and your cronies have a predisposition of antipathy to Israel you are going to assume that the incident cited above was a deliberate act and not a tragic accident of war.
So the very actions and conclusions of this supposedly objective and non-partisan commission lead to the patently biased nature of its findings. If it had been the USA or NATO who bombed the al-Simouni house in Afghanistan or Libya no-one would accuse them of war crimes and the immediate conclusion would be that this is an accident of war.
It is instructive to note two stories running this weekend on the BBC News website. The first is entitled Libya air raid ‘killed civilians’. The second ‘Libya: Coalition air strike near Brega kills rebels’.
Seven civilians died and 25 were hurt in a coalition air strike on a pro-Gaddafi convoy in eastern Libya, a doctor there has told the BBC.
Nato officials told the BBC they were making inquiries “down our operations chain to find out if indeed there is any information on the operation side that would support this claim”.
At least 10 Libyan rebels are reported to have been killed when a coalition plane enforcing the no-fly zone fired on their convoy between Brega and Ajdabiya late on Friday night.
And the Libyan government was quick to try to use some UN medicine on the Coalition:
Spokesman Moussa Ibrahim … condemned recent coalition air strikes as “a crime against humanity” and said there had been civilian casualties in one attack on Thursday.
Of course, no-one would take seriously the accusations of the Libyan government, right? After all, they are now an outlaw regime who kill civilians indiscriminately, fire at ambulances and rape dissidents.
So why should Goldstone have put so much weight behind the statements of Hamas, the Gaza government who kill civilians indiscriminately, use ambulances to convey combatants to and from the battlefield and use human shields?
The tragic deaths reported above came about because of the fog of war. No-one will prosecute anyone after the Coalition investigates these incidents. The UN General Assembly will not have an emergency session where hysterical Arab states condemn the US and the UK. Israel, however, is investigating.
Goldstone is critical that Israel has taken so long. Does the Judge not know how long criminal cases take to investigate? And let us remember that Goldstone himself says here that Israel is investigating 400 incidents. 400! No wonder it takes a long time to conclude.
Goldstone’s little shindig was concluded in the blink of an eye in comparison.
Now here’s a biggy:
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.
This is legal speak for saying that the conclusions were wrong. Not just al-Simouni but the whole shebang.
Once again, Goldstone is saying, “if only we had waited for the Israeli investigations’ conclusions instead of the rush to judgement and condemnation in the UN’s kangaroo court system specially reserved for one state, Israel’ actions would have been vindicated’.
Just a second; that’s not what he said exactly. He does not say Israel has been vindicated, he just wished he had had the Israeli evidence. In fact, some of the incidents in the Report have led to criminal prosecutions in Israel, proving that Israel is as capable of investigating itself as any democracy. Yet, it is the only democracy that is treated by the UN as if it were a criminal entity, not to be trusted or given any credence whatsoever.
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).
Now Goldstone is really having a laugh, as we say in the UK. Since he later admits that the UNHRC is ‘skewed’ in its bias against Israel, and, given the fact that anyone in his or her right mind can see that the UN and especially the UNHRC is obsessed with bashing Israel at every opportunity, and making up a few opportunities of its own (remember Durban I and II?), then how can he expect Israel to have agreed to co-operate with a body that is so biased?
This is like asking the defence lawyer to co-operate with the prosecutor to find a guilty verdict against the accused. In effect, Israel took ‘the 5th’; it refused to speak in what it saw as an enterprise predisposed to find it guilty.
Goldstone is actually crticising Israel for not co-operating with his commission, a tool of the very UNHRC that he is himself condemning!
Goldstone now tries to protect his own reputation:
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.
So if he knew it was biased, why did he not decry it to high heaven rather than accept his role in some misguided belief that ‘as a Jew’ and a ‘Zionist’ he could mitigate the level of attack he appears to have anticipated.
Surely, his job should have been to expose the UNHRC for what it was, accuse it of bias, produce evidence and prove that any commission investigating Israel was either going to have already made, and in at least one case of a commission member, already published their antipathy to Israel. Thus demonstrating that such a commission was invalid and its conclusion illegitimate.
Goldstone did not do this.
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.
Disingenuous once again. Who’s he kidding. if I knew that this was not going to happen, surely, the venerable Goldstone would know.
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.
Even if Israel had co-operated, it would self-evidently not have had time to prepare a proper defence of its actions. This is so patently true, given the unwarranted haste with which the commission was formed, that Goldstone must know that what he is writing is utter BS.
The commission’s ‘recommendations’ were so strongly worded, so accusatory and so reliant on flawed evidence taken from a people who are unreliable witnesses, given the nature of the regime under which they live, that to say they were just ‘recommendations’ is disingenuous in the extreme.
Goldstone knew full well how his ‘recommendations’ would be received. He knew full well that Israel would be condemned before the ink was dry and that he was adding to the avalanche of delegitimisation of a state fighting a callous and immoral enemy.
The Goldstone Report, in effect, portrayed Israel as being at least as criminal as Hamas. The result was that Israel’s public and international reputation, such as it was after years of similar tactics against it, was brought to a level whereby a democracy with an army dedicated to following and observing international law in the most difficult and dangerous of circumstances, was further criminalised and delegitimised by what amounted to a malicious prosecution by the UN, a body supposedly dedicated to protecting Human Rights and promulgating democracy.
Now we have Goldstone in Cloud-Cuckoo-Land:
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.
Well you don’t say.
But what is the true crime here is that the UN has actually encouraged Hamas as a result of this report because it can clearly see that by provoking Israel to defend itself and thereby increasing the chances that some errant Israeli soldier will commit a crime, it can act with impunity and get the whole weight of world opinion against Israel and orchestrated by the UN.
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.
If you are so concerned about this, Judge Goldstone, why don’t you get off your judicial butt and do something about this? Op-ed’s in worthy newspapers will not change anything. Recanting and telling the truth about Israel will.
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.
There is some truth in this. But this is surely the point; had the commission questioned Israel’s actions with regard to WP and highlighted incidents worthy of investigation rather than draw the unwarranted conclusions that it did, the Report would have been tolerable.
At first, I did not believe the WP stories. After closely reading reports I concluded that Israel’s use was always legal but perhaps, in some cases, unwise or even cavalier. In other words, it did not always use WP as a last resort.
However, I was not a soldier in Gaza risking my life against an embedded enemy. Battlefield decisions that have adverse consequences on civilians must be investigated and procedures tightened up if necessary. Given the recent deaths caused by Coalition bombing in Libya, maybe NATO will be forced to revise its procedures.
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.
So what is the UN doing about it? Why is there not a UN force to Gaza to stop rockets? Could it be due to the Arab and Muslim block in the UNGA, the UNHRC and just about every other body, commission or group which falls under the UN auspices?
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.
So who’s holding Hamas to them?
In conclusion, did he recant? Well, you know what, I think he came about as close as he could. I see no claims in this article that he believes the Israeli government or any of its ministers or any army commander committed a war crime in Gaza.
If the author of the Goldstone Report goes public and says it is flawed, that he trusts Israeli investigations and their conclusions, that he is satisfied that criminal cases are being investigated and prosecuted according to Israeli and international law, then clearly, Israel has no case to answer, never did have a case to answer and the Report should be condemned to the waste basket of history.
I am sure that slowly emerging from the woodwork will be a lot of Palestinians, Arabs, Muslims, NGO’s, far-lefties, journalists etc. who will claim that Goldstone has recanted because:
1. He is a Jew and has reverted to type or
2. He has been got at by Mossad or
3. He is suffering from a mental illness or
4. What do you expect from a Jew or
5. He has been bribed by a wealthy Jew or AIPAC or AJC or UJIA
Others will simply say that there are other members of the team who have not recanted, the Report stands.
Others will just ignore it. Last time I looked, Al Jazeera were keeping stum.
Even the BBC have produced a pretty fair assessment. But I don’t see it on their home page?
And now, Israel’s detractors can no longer wave the Report and shout ‘war crime’.
Is the damage done? Only if we don’t give this retraction publicity.