Upon Further Review . . .
Judge Goldstone withdraws his charge of Israeli war crimes.
Apr 18, 2011, Vol. 16, No. 30 • By PETER BERKOWITZ
To the astonishment of friends and foes of Israel alike, on April 1 in the Washington Post, Justice Richard Goldstone reversed himself. Israeli prime minister Benjamin Netanyahu promptly demanded that the United Nations retract the Goldstone Report, which, following its publication in September 2009, quickly became the proof text for progressives determined to denounce Israel as an outlaw nation. Meanwhile, Goldstone’s colleagues on the U.N. Fact Finding Mission on the Gaza Conflict—London School of Economics professor Christine Chinkin; Colonel Desmond Travers, a former officer in Ireland’s Defence Forces; and Hina Jilani, advocate of the Supreme Court of Pakistan—have shown no sign of changing their minds. Indeed, on April 4, Jilani declared that “no process or acceptable procedure would invalidate the U.N. Report.”
What’s that? We were completely wrong? Judge Richard Goldstone.
Yet whatever unfolds at the U.N. and however determined his colleagues are to stick to their story, Goldstone’s dramatic reversal has great significance. Under the understated title “Reconsidering the Goldstone Report on Israel and War Crimes,” Goldstone withdrew the gravest charge that he and his colleagues had leveled against Israel and its Gaza operation of December 2008-January 2009, which aimed at stopping Hamas’s firing of thousands of mortar shells, rockets, and missiles at civilian populations in southern Israel.
According to Goldstone, a former justice of the Constitutional Court of South Africa, it is now established both by Israeli military investigations and by “the final report by the U.N. committee of independent experts” (chaired by former New York judge Mary McGowan Davis) that “civilians were not intentionally targeted as a matter of policy” by Israel. Coming from Goldstone—chosen to head the Human Rights Council’s investigation in part because of the prestige he brought as former prosecutor of the international criminal tribunals for the former Yugoslavia and Rwanda—this exoneration was as welcome as it was unexpected. But, like much else in his Post piece, it is partial and misleading.
Goldstone wrote as if he were confronting a lingering suspicion that finally can be laid to rest. He failed to acknowledge that nothing had done more than the Goldstone Report—endorsed by the U.N. General Assembly in November 2009 by a vote of 114-18, with 44 countries abstaining—to promulgate the slander that Israel had adopted an essentially criminal strategy in Operation Cast Lead.
In fact, the Goldstone Report culminates with the conclusion—not a factual finding or suspicion but a legal conclusion—that in the Gaza conflict Israel undertook
With this calumny, the Goldstone Report went beyond asserting a moral equivalence between Israel and the terrorists it was fighting. It affirmed that Israel was worse than Hamas, since Israel was a state, since Israel used state-of-the-art weaponry, and since the death and destruction it supposedly deliberately inflicted on civilians in Gaza was much greater than the harm to civilians in southern Israel caused by eight years of Hamas bombardment.
In the Post, Goldstone blamed his report’s most egregious error on Israel’s refusal to cooperate: “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.” This is incorrect. For one thing, Goldstone and his colleagues did not leave matters at “allegations”; they made numerous legal findings that Israel, as a matter of strategy and policy, targeted civilians. For another, it was not as Goldstone now contends that he lacked evidence to avoid the conclusion of intentionality. Rather, the evidence he and his team collected and on which they based their legal findings was always insufficient to reasonably conclude that the Israel Defense Forces had committed war crimes and crimes against humanity.