In the Media

Colin Rubenstein

The Australian – April 12, 2011

PROBABLY no document in the recent history of the Arab-Israeli conflict has done more damage to the reputation of Israel, nor contributed more to the international campaign to boycott and delegitimise it, than the Goldstone report.

That is why judge Richard Goldstone’s mea culpa in a Washington Post opinion piece on April 1 was so breathtaking.

Goldstone, chairman of the commission that wrote the UN Human Rights Council’s Goldstone Report into the Gaza War of 2008-09, has now conceded that, regarding Israel: “If I had known then what I know now, the Goldstone report would have been a different document.”

In particular, he now agrees that the most inflammatory and absurd of the report’s conclusions – that Israel deliberately targeted Palestinian civilians “as a matter of policy” – is baseless.

He also concedes that Israeli authorities are reasonably investigating every specific allegation of misconduct by its soldiers during the Gaza War. Hamas, by contrast, he points out, has done “nothing”.

Unfortunately, Goldstone’s change of heart cannot undo the massive, irreparable damage he and his co-commissioners have inflicted through their report. This damage is not only to Israel’s reputation but also to Middle East peace prospects, and to the very notion of a responsible and universal system of international law.

Goldstone now agrees that the UN Human Rights Council, which mandated his inquiry, has a “history of bias against Israel (that) cannot be doubted”.

This is, after all, the same UNHRC that included Libya, Egypt and Saudi Arabia as members – and gave them clean bills of human rights health – at the time it initiated the fact-finding mission. The UNHRC then completely omitted addressing whatever scant reference there was to Hamas in the Goldstone report when it was formally adopted a year later. The UNHRC has never condemned the ongoing Hamas rocket and mortar attacks from Gaza on Israeli towns, despite repeated Israeli requests.

The UNHRC’s mandate for Goldstone itself had already declared that Israel, and Israel alone, was guilty of war crimes. Two of Goldstone’s three fellow panel members, British academic Christine Chinkin and Pakistani jurist Hina Jilani, had also publicly declared Israel guilty of war crimes before joining his commission.

Yet Goldstone continues to criticise Israel for failing to co-operate with his commission.

Notwithstanding Israel’s decision to officially shun the mission, there was ample readily available evidence – including publicly issued reports by Israel and non-government organisations, witness testimony, and international media stories – at the time of his original inquiry for Goldstone to reach the same conclusions that he has now.

Instead, Israel was declared guilty on the grounds that it had not disproven the allegations against it.

Israel actually began investigating any allegations against its soldiers immediately after the conflict and has one of the most independent judicial and military investigation review systems in the world. It has a good track record of punishing soldiers guilty of misconduct.

Goldstone’s repudiation of the key elements of his original report should now dramatically undercut efforts by Israel’s critics, including radical NGOs, to paint it as a rogue state. But it probably will not.

The UNHRC will almost certainly not rescind the report even if Goldstone formally requests this, both because of its own biases – it is dominated numerically by the Organisation of Islamic Conferences states – and because the other commissioners will probably not join him in his request. Predictably, anti-Israel campaigners relying on the report to further their agendas are already publicly dismissing Goldstone’s present views as irrelevant.

Furthermore, the Palestinian Authority is now disastrously pursuing what might be called a “Goldstone strategy”.

That is, in refusing to negotiate with Israel on a much needed two-state conflict resolution, they are instead pursuing a plan to be granted unilateral statehood through the UN, relying on the world body’s permanent anti-Israel majority. This is bad for everyone concerned, not only because peace cannot be achieved without genuine negotiations but also because any unilateral Palestinian move, without shared agreement on difficult and contentious issues such as refugees and Jerusalem, may well spark a renewal of violence between the parties.

Finally, the Goldstone fiasco is a major setback for international law and the institutions of the UN. The report in effect attempted to establish a legal principle that if terrorist groups operate from a civilian population, it is a war crime to respond in self-defence to their attacks if any civilians may be harmed, as some inevitably always will be.

Such a principle only encourages terrorists to put civilians on both sides in harm’s way, and by creating a completely unworkable rule, damages respect for, and adherence to, international law.

Meanwhile, what serious government would be willing to submit to the politicised, corrupt and biased parody of the application of human rights law that UN institutions instigated in the Goldstone case?

Despite Goldstone’s volte-face, the negative repercussions of this fiasco will reverberate for years.

Colin Rubenstein is executive director of the Australia/Israel & Jewish Affairs Council