The Aftermath of Goldstone’s ‘Reconsideration’: Debunking Two Myths and Assessing the Damage

Unless and until Justice Richard Goldstone writes a full-exposure memoir, we will probably never fully understand what made him write the 1 April Washington Post op-ed in which he reconsidered the conclusions of his eponymous report for the UN Human Rights Council. But this has stopped neither speculation about his motives nor the demand for action on his supposed ‘retraction’ – in other words, formally withdraw the report. Only yesterday, the New York Review of Books blog carried a piece by David Shulman plumbing the implications of Goldstone’s words and a few days ago the US Senate agreed unanimously to a resolution calling on the United Nations to rescind the Goldstone report.

All this is grist to the mill of conspiracy theorists who must be gorging themselves on the numerous possibilities as to who put pressure on Goldstone so as to provoke his change of heart, who was meant to benefit from it, what signal he was sending to his fellow Jews, whether he had consulted the other three members of the fact finding mission etc.  Or whether he just checked into a hospital and ordered himself a lobotomy.

While this sort of speculation will probably rumble on, two myths can now be categorically debunked.

There are absolutely no grounds for demanding the withdrawal or rescinding of the report or for insisting that Goldstone himself now repudiate the entire enterprise.

This should have been clear even when the Goldstone op-ed was published, but it was certainly spelt out categorically in the definitive statement made by Hina Jilana, Christine Chinkin and Desmond Travers, the other three members of the UN fact-finding mission on the Gaza conflict, issued on 14 April. In it they aimed to ‘dispel any impression that subsequent developments have rendered any part of the mission’s report unsubstantiated, erroneous or inaccurate’. They say: ‘there is no justification for any demand or expectation for reconsideration of the report as nothing of substance has appeared that would in any way change the context, findings or conclusions of that report with respect to any of the parties to the Gaza conflict. Indeed, there is no UN procedure or precedent to that effect.’ Continuing to highlight the responsibilities of both the Israeli authorities and the Hamas government they state: ‘we believe that both parties held responsible in this respect, have yet to establish a convincing basis for any claims that contradict the findings of the mission’s report’. And in the final paragraphs of their unequivocal statement they emphasise once again the integrity of the report: ‘We consider that calls to reconsider or even retract the report, as well as attempts at misrepresenting its nature and purpose, disregard the right of victims, Palestinian and Israeli, to truth and justice.’

The core evidence that Goldstone says persuaded him to reconsider and withdraw the charge that civilians were intentionally targeted as a matter of policy provides no grounds whatsoever for reaching such a conclusion.

It was the final report by the UN committee of independent experts appointed to follow-up on the recommendations of the Goldstone Report, chaired by Judge Mary McGowan Davis (the other member was Judge Lennart Aspergren), which was presented to the Human Rights Council in March 2011, that Justice Goldstone says made him reconsider his original conclusion that civilians were intentionally targeted by Israel. But even the most cursory reading of the text of McGowan Davis’s report shows that no such reconsideration is justified. The judge states that ‘The Committee reiterates the conclusion of its previous report that there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.’ How then is it possible to conclude that there was no policy intentionally to target civilians?

It’s true that even many severe critics of Israel have thought this unlikely. Referring to Goldstone’s statement in his op-ed that ‘civilians were not intentionally targeted as a matter of policy’, David Shulman says: ‘I am sure that this last statement is correct; anyone who knows the Israeli army knows that, for all its faults and failings, it does not have a policy of deliberately targeting innocent civilians. Suggestions to the contrary are simply wrong.’ But this is an article of faith, not clear proof. All that the Goldstone report called for was that there be high-level, independent investigations conducted by the Israeli authorities (and similar investigations by Hamas) and yet to this day nothing of the kind has been done.

One of the world’s leading authorities on human rights and international law, Sir Geoffrey Bindman, makes a good case for not being as sanguine about Israeli policy as David Shulman. He put it this way in an email I received from him:

Intentional targeting of civilians can only be established by inference in the absence of clear documentary evidence. That inference is almost irresistible when there is overwhelming evidence of reckless disregard for the risk to civilians coupled with the actual killing by Israeli soldiers of hundreds of them in Gaza. Goldstone himself points out that the Israelis declined to co-operate and thus failed to provide evidence to rebut the inference. If there were indeed a prosecution for war crimes they would have an opportunity to do that. The report did not and could not claim to establish guilt, merely to establish the factual basis for a prosecution so far as it could do so.

Although it seems that one of the significant successes of the Goldstone report was indeed to persuade the Israelis that they had to conduct some, albeit not entirely independent, investigations, and it may be that the Israeli military will always now have in mind the Goldstone report when it conducts any future offensives against the Palestinians, the result of Goldstone’s op-ed has been to bring to an end any chance of a serious, high-level rethink about what was done in Israel’s name in Gaza and what it might be possible to do in future. With those such as J Street welcoming  Goldstone’s retraction, Carlo Strenger arguing that the UN should now officially scrap the report and Jonathan Freedland in the Guardian, whether intentionally or not, diluting the force of the Goldstone report by wondering why there are no Goldstone reports on Sri Lanka, Darfur, the Congo or the Ivory Coast, the Netanyahu government must have revelled in its sense of self-justification and strengthened its view that it never has any case to answer in the court of international opinion or law.

There is no question that the Goldstone op-ed emboldened the Israeli Zionist right-wing, provided the settlement movement with even more justification for holding on to and grabbing more land in the West Bank, gave a boost to Israel’s hasbara (propaganda) efforts internationally and was seen as a vindication by those who accused Goldstone of being a ‘self-hating Jew’ and of perpetrating a blood libel against the Jewish people. And the other side of this coin is the way Goldstone has made it even more difficult for Israeli human rights organizations to operate freely, the very groups that provided Goldstone with essential information for his report given that the Israeli government refused to cooperate with the fact-finding mission and supply it with information that Goldstone requested. Miri Weingarten, the Director of JNews and a human rights activist, predicted this shortly after the op-ed appeared. As she wrote in a piece for openDemocracy crossposted on the JNews website on 6 April: ‘Goldstone’s “reconsideration” may drive another nail in the coffin of Israeli accountability, and at the same time exacerbate the growing attacks on Israeli human rights defenders.’

That Justice Goldstone appears to have further damaged Israel’s civil society, already under severe attack from the repressive legislation being introduced by members of the government coalition, is nothing short of tragic. As a passionate proponent of universal human rights, Goldstone must know just how important civil society groups are in holding governments and official organizations to account when there are concerns about the erosion of those rights. It’s inconceivable that he deliberately wanted to make life more difficult for B’Tselem, Physicians for Human Rights-Israel, Breaking the Silence and many other such groups. And yet this is the consequence of his act of contrition.

I can only conclude that Goldstone did not understand the wider consequences that would result from his Washington Post op-ed. The very fact that by writing the piece he excessively personalised the report, which, while obviously carrying his name, is written in the name of all four members of the mission, does suggest that he had deeply personal reasons for doing so. And for someone who sees himself as a proud Jew and a Zionist, and who we know was deeply hurt by the accusations of ‘blood libel’ and ‘self-hating Jew’, among other appalling charges, made against him, that’s understandable. Nevertheless, one can only hope that he is sufficiently self-aware to be spending no small amount of time regretting the part he has now played in further delaying the attainment of justice and peace in Israel-Palestine.

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