Updates

Update from AIJAC

April 7, 2011
Number 04/11 #02

As most readers are probably aware, Justice Richard Goldstone, the head of the UN Human Rights Council’s much-discussed “Goldstone Commission” into the 2008-2009 Israel-Hamas conflict in Gaza, published a recantation in the April 1 Washington Post of many of the report’s key findings. Anyone who has not read it (it also appeared in the Sydney Morning Herald) should do so here. This Update deals with the implications of his volte face.

First up is David Horovitz, editor of the Jerusalem Post, who offers an excellent summary of all the issues associated with Goldstone’s original report and now recantation. He lists the various ways in which this retraction cannot make up for the damage caused by the original report. He also takes particular issue with Goldstone’s ongoing complaints about Israel’s refusal to cooperate with his inquiry – pointing out that this was never likely and that there was ample material available giving the Israeli side to him, but the inquiry chose to ignore it. For Horovitz’s full commentary, CLICK HERE.

Next up is American columnist Richard Cohen, who makes the key point that the real tragedy of the Goldstone saga is that so many people appear prepared to believe that Israel deliberately sets out to kill civilians. He offers some good points about the complexities of the Gaza situation, including the increasing danger today from increasingly long-range rockets. He also points out that Israel clearly does have a culture which adheres to a morality similar to that in the US or elsewhere in the West, but Hamas does not, and that while horrible things may happen in war, including individual war crimes, doing so as a matter of policy is not something Israel’s political culture would tolerate. For his full piece, CLICK HERE. Some more opinion columns on Goldstone’s recantation come from Melanie Phillips, Marty Peretz, veteran Australian Jewish leader Isi Leibler, Aluf Benn, Michael Weiss, Ron Radosh, Eitan Haber, John Podhoretz, Jeffrey Goldberg, Assaf Wohl and Jennifer Rubin.

Finally, Israeli international law expert David Benjamin notes, in a piece written before Goldstone’s announcement, that some new UN reports actually support what Goldstone has been saying about Israel’s serious efforts to investigate all complaints and allegations made about its soldiers.  Benjamin notes that, substantively, reports by two “Committees of Experts” on the investigations of Gaza war allegations “contain much more in the way of vindication of Israel’s legal processes than criticism.” Of course, the UN Human Rights Council predictably ignored this and passed an Israel-bashing resolution calling for a referral to the International Criminal Court anyway, which shows how unlikely it is that Israel will ever get a fair hearing from this body, even when expert opinion is largely on its side. For this additional important piece of the Goldstone puzzle, CLICK HERE.

Readers may also be interested in:

• It has been speculated that Goldstone’s decision to publicly announce his change of heart on his report was prompted by a debate he attended at Stanford University a few days prior to the op/ed appearing in the Washington Post – see here and here.
•  The two pro-Israel law experts speaking at that debate were Avi Bell and Peter Berkowitz. Bell published his reaction to Goldstone’s decision and account of the debate here. Berkowitz meanwhile has just published a penetrating book review dealing primarily with the Goldstone report which reportedly adheres closely to his arguments at the Stanford debate.
• Hamas and PA responses to Goldstone’s recantation.
• Anne Bayefksy and Alan Baker on the UN following Goldstone’s change of heart. Meanwhile, NGO-Monitor calls attention to the implications of Goldstone’s recantation for NGOs which contributed to and made use of the Goldstone report.
• Editorials on Goldstone from the Jerusalem Post, Chicago Tribune, National Review,  New York Sun and, for those who haven’t seen it, the Australian.
• Goldstone later denies a report he said he would help get the UNHRC to rescind his report.
• A US State Department response, and a critique of it from Jennifer Rubin.
• A prominent Israeli Arab actor and pro-Palestinian activist, Juliano Mer-Khamis, has been murdered in Jenin, where extremists opposed his work. A Hamas member has reportedly been arrested over the killing. Ari Shavit of Haaretz comments on the reaction to this crime.
• Alan Dershowitz on his experience of boycotts and antisemitism in the universities of Norway.
• The secrets of Israel as a “start-up nation.”
• A heart-warming and surprising story about Israeli and Iranian rescue workers cooperating in Japan.

 

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Comment: Goldstone the belated penitent

By DAVID HOROVITZ 
Jerusalem Post , 04/02/2011 21:46

By alleging, unfoundedly, that we were an immoral enemy, the sanctimonious judge put all of our lives at greater risk.

Yom Kippur has evidently come early this year for Richard Goldstone.

He couldn’t quite bring himself, in his Friday article “Reconsidering the Goldstone Report on Israel and War Crimes,” to write, “I have sinned, forgive me.”

But the astounding piece in The Washington Post by the Jewish justice, who presided over the Goldstone Report that accused Israel of war crimes and possible crimes against humanity in Gaza during Operation Cast Lead, represents nothing less than an apology to Israel.

“If I had known then what I know now,” he writes in the first extraordinary paragraph of his mea culpa, “the Goldstone Report would have been a different document.”

How dramatic the about-face. And how terrible that it was necessitated.

How tragic, that is, that Goldstone so misplaced his moral compass in the first place as to have produced a report that has caused such irreversible damage to Israel’s good name. Tragic least of all forthe utterly discredited Goldstone himself, and most of all for our unfairly besmirched armed forces and the country they were putting their lives on the line to honorably defend against a ruthless, murderous, terrorist government in Gaza.

The “if I had know then what I know now” defense Goldstone invokes to try to justify his perfidy is typically flimsy, of course.

Sanctimonious even now, Goldstone complains about Israel’s “lack of cooperation with our investigation.” But as he knows full well, Israel could not possibly have formally cooperated with his inquiry, which had been constructed by the obsessively anti-Israel UN Human Rights Council with the precise intention of blackening Israel’s name, legitimizing its enemies and curtailing its capacity to defend itself in future conflicts – such as the one Israel may have to fight quite soon if the current upsurge in Hamas rocket fire continues.

To have formally subjected itself to examination by his committee and the institutionally biased UN Human Rights Council that had formed it – a bias which Goldstone now acknowledges in his article – would merely have given his work greater purported credibility.

Notwithstanding that absent formal cooperation, however, the truth about what happened in Gaza in December 2008 and January 2009 – the truth that Goldstone now disingenuously claims to have discovered only after he filed his malicious indictment of the IDF and of Israel – was readily available to him at the time.

Israel did informally make the necessary information available to his committee in the shape of detailed reports on what had unfolded. And open sources, honestly evaluated, left no doubt that Hamas was the provocateur, that Hamas was deliberately placing Palestinians in harm’s way, that Hamas was lying about the proportion of combatants among the Gaza dead. Open sources also left no doubt that the IDF – far from deliberately targeting civilians; the bitter accusation at the heart of Goldstone’s report – was doing more than most any military force has ever done to minimize civilian deaths, even as it sought to destroy the terrorist infrastructure and pick out the terrorists who had been firing relentlessly into Israel’s residential areas.

Only now, 18 months after he submitted his incendiary accusations against Israel, has Goldstone brought himself to acknowledge what a fair-minded investigation would have established from the start – that the IDF emphatically did not seek to kill civilians in Gaza. As he puts it in the simple phrase that should reverberate inside every foreign parliament and every human rights organization that rushed to demonize Israel: “Civilians were not intentionally targeted as a matter of policy.”

Risibly, Goldstone asserts that his report’s “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.”

In truth, the only reasonable conclusion that an honest investigation could possibly have drawn – given the evidence available, given the Hamas track record and given the IDF’s moral tradition – was that Israel had not intentionally killed Palestinian civilians. But, again, his was no honest investigation.

Unfortunately, Goldstone’s “reconsideration” will not garner a thousandth of the publicity or have a thousandth of the impact that his original, baseless accusations against Israel drew. Governments – including, to what should be their abiding shame, self-styled friends of Israel in Europe and beyond who failed to vote against this report – will not rush to deliver the apology they owe our government and our soldiers.

They will not rush to recalibrate their policies.

They will not now rush to issue statements expressing their confidence in Israel’s capacity to properly investigate allegations of misdoings by its military, even though the man who had previously given cover for their criticisms has now reversed himself and penned an article endorsing Israel’s processes for self-investigation.

The statesmen and the NGOs that savaged us, using the Goldstone Report as their “proof,” will not now, prompted by Goldstone’s reversal, ratchet up their criticisms of Hamas. They will not now express their outrage at the Palestinian Authority’s efforts to exploit the Goldstone Report to harm Israel – a key milestone on the PA’s road toward international recognition for a unilateral declaration of statehood.

They will not now demand that PA leader Mahmoud Abbas abandon his current effort to negotiate “unity” with Hamas, a terrorist group avowedly working for the destruction of Israel and, as Goldstone now writes, “purposefully and indiscriminately” targeting Israel’s civilians.

They should, but they will not. They have moved on now.

Israel’s guilt has long-since been “established.” And no matter that the man who certified it has belatedly internalized the gravity of the big lie he helped facilitate.

Nor either, pitifully, will the media organizations that so hyped the baseless allegations of Israeli war crimes now allocate similar broadcast-topping coverage and front page space to Goldstone’s belated exoneration of Israel. It will be a surprise, indeed, if we see the world’s most resonant newspapers following Goldstone’s lead and penning texts acknowledging that their reports and their analyses and their expert opinion pieces were wide of the mark.

And we had best not hold our breath, either, for Israel’s own internal critics – including certain widely cited newspapers and so-called watchdog groups that amplified the allegations of deliberate killings of civilians, and that so often seem to want to believe the very worst about Israel in the face of all reasonable evidence to the contrary – to emulate the judge’s shift.

The hollow Goldstone now writes that “I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the UN Human Rights Council, whose history of bias against Israel cannot be doubted.”

Given that “history of bias” at the council, one can only wonder, yet again, why Goldstone consented to do its dirty work for it, to such devastating effect.

His duplicitous investigation has had a toxic effect everywhere on the second battlefield – in diplomatic and legal forums, in the media, on university campuses, in global public discourse. He poisoned Israel’s name.

And on the real battlefield, he gave succor to our enemies, encouraging them to believe that they could kill us not with mere impunity, but with active international empathy and support.

He alleged that we were an immoral enemy, and thus he put all of our lives at greater risk.

An apology just isn’t good enough. The very least he owes Israel is to work unstintingly from now on to try to undo the damage he has caused.

Yom Kippur came early this year for Richard Goldstone. His show of penitence has come far too late.

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The Goldstone Report and Israel’s moral standing

By Richard Cohen

Washington Post, Monday, April 4, 7:24 PM

It came as (almost) no surprise to me that Japanese utility workers remained at their crippled and highly toxic nuclear plant even at the risk of death. It came as (almost) no surprise either that in the chaos of the earthquake and subsequent tsunami, there were no reported incidents of widespread looting. Japan is one vast community, mostly a single ethnic group, and societal pressures are intense. A nation, like an individual, has a culture.

This is why it was always so shocking that Israel was accused of deliberately targeting civilians during its brutal 2008-09 war with Hamas. That accusation was contained in a report to the United Nations by Richard Goldstone, an eminent South African judge who had been used by the international community previously to investigate war crimes. That Goldstone was also a Jew and a Zionist made the charge all the more powerful.

Now, though, Goldstone has retracted his findings. He no longer believes that Israel intentionally targeted civilians during the Gaza war (although he still believes Hamas did) and says that any deaths were inadvertent — the usual fog of war, the usual panicked decision. For Israel, it’s like the governor has called the warden — it’s been reprieved and taken off death row.

Once again, rockets are being fired into southern Israel from Gaza, some of them going up the coast as far as Ashkelon, a major city and port. Before the last war, from April 2001 to the end of 2008, 4,246 rockets and 4,180 mortar rounds were fired into Israel, killing 14 Israelis and wounding more than 400. The rockets have since been improved. Should more than the occasional rocket actually make it all the way to Ashkelon (one came close Monday) or should one of them come down on a school, another war with Hamas would start a moment or two later. Israel has already hit back, but not in force. In addition, a West Bank settler family of five was recently murdered in their home by what are universally thought to be Palestinians. This, too, has put Israel on edge.

The Gaza situation is complicated. Hamas apparently is having a tough time reining in its more extreme elements who want to immediately strike at Israel. At least for the moment, Hamas would prefer they would not. The region is unstable enough as it is. A little Arab-Israeli war could get out of control very fast, with Arab governments either no longer so firmly in control (or out of power completely) and unwilling or unable to stare down elements seeking to even the score with Israel.

At the moment, Goldstone is being pilloried and praised in Israel. He is condemned for what he once wrote and acclaimed for recanting it. But Goldstone is beside the point — a symptom of something larger. That his report was accepted in much of the world testified to how much Israel’s moral standing has plummeted. (It has also led countless Israelis and others to conclude that they are damned when they do the wrong thing and equally damned when they do the right thing.) Much of the world believed Israel would purposely kill civilians.

I do not argue that Israel is perfect. It continues to bully West Bank Palestinians, and I can cite the few villages where Israeli soldiers massacred Arabs during the 1947-48 period. But that was a civil war — want to compare it to our own? — and the war crimes were hardly ordinary occurrences. Americans committed war crimes at My Lai and now in Afghanistan and Iraq. My own former division, the glorious 42nd, was accused of murdering German POWs in World War II. Never, though, would I think that any of this was national policy or a strategy of war. I know my country better than that. We don’t do such things and, if it happens, we don’t put up with it.

As Goldstone acknowledges, Israel has looked into every charge of war crimes — incident by incident. Some soldiers have indeed been punished because some awful things happened. But overall, Israel adheres to a morality we all recognize and admire — and that its enemies, Hamas in particular, do not. Those who gleefully embraced the Goldstone report have to ask themselves why. They may hate the answer.

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Vindication rather than condemnation

By DAVID BENJAMIN 

Jerusalem Post,
03/30/2011 22:14

Follow-up reports on Goldstone findings contain much more in the way of what’s positive about Israel’s legal processes than what isn’t.

 
In last week’s session, the UN Human Rights Council adopted yet another slew of Israel-bashing resolutions, one of which urges that the UN Security Council refer the “situation in the Occupied Territories” to the International Criminal Court. This comes after the second of two “Committees of Experts” appointed by the UNHRC submitted its report on Israel’s and the Palestinians’ investigations into allegations of war crimes and crimes against humanity contained in the UNHRC’s Fact Finding Mission Report (the Goldstone Report). What was predictably overlooked in the Council’s rush to denigrate Israel was the fact that in substantive (rather than quantitative) terms, the reports compiled by the Committees contain much more in the way of vindication of Israel’s legal processes than criticism.

First, the reports accept that, in principle, it is legitimate that allegations of misconduct of military personnel are investigated by military authorities. This runs counter to the popular claim that the military is incapable of investigating itself.

Second, the reports acknowledge that there are built-in structural guarantees to ensure the professional independence of the IDF’s Military Advocate General’s Corps.

On top of this, the fact that both the attorney-general and the Supreme Court exercise civilian oversight of the military legal apparatus and that any interested party can petition the Supreme Court to overturn a decision of the military authorities is described as “a commendable mechanism to protect against arbitrariness”.

The reports also make mention of the “commendable practice” whereby Palestinians can file claims for compensation in Israel.

MOREOVER, THE reports acknowledge that Israel “has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza. Given the scale of this undertaking, it is unsurprising that in 2011 much remains to be accomplished.”

Of particular note is the fact that the second Committee’s report views the mechanism of the Turkel Commission as an appropriate framework to investigate questions of policy and the actions of high-level decision makers. Here it should be recalled that not only did the Turkel Commission vindicate the actions of the IDF in the Gaza flotilla affair, but the same body is currently examining whether Israel’s system of investigating violations of international law by its own personnel conforms to international standards. This can be taken to mean that, in the Committee’s view, the findings of the Turkel Commission on this matter should carry considerable weight for those entrusted with determining whether Israel has adequately investigated allegations made in the Goldstone Report.

It should be noted that the report’s conclusions were reached in the absence of cooperation by Israeli authorities, a fact lamented by the Committees, which relied on NGOs and materials available in the public domain.

Of course, the reports also contain criticism of the Israeli investigation process. However, the primary criticism hinges on a point which the Committees themselves concede to be debatable.

They make much weather of the fact that the military advocate general fulfills the dual function of both chief legal adviser to the IDF as well as chief prosecuting authority. They argue that this might impact on his impartiality, but at the same time concede that this “does not automatically lead to a conflict of interests or lack of impartiality”.

The Committees also see a major shortcoming in that Israel has not appointed an independent body, such as the Turkel Commission, to investigate the actions of those who “designed, planned, ordered and oversaw” Operation Cast Lead. Of course, this would be necessary if one seriously believed the outrageous accusation (à la Richard Goldstone) that Israel had a policy of systematically and deliberately attacking the civilian population and infrastructure.

While the reports also devote an inordinate amount of their text to nitpicking at the minutia of individual Israeli investigations, this has the effect of reinforcing the serious and sophisticated nature of the Israeli efforts. Furthermore, the juxtaposition of the Committees’ treatment of Israeli investigations along with its treatment of the “investigations” being conducted by those who are termed “the de-facto rulers of Gaza” – where there is clearly nothing to nitpick at – only serves to highlight the absence of any intention by Hamas to address the deliberate and indiscriminate launching of missiles at Israeli civilians. Notably, the second report also places a focus on the lack of redress for the Israeli victims of the conflict.

In short, the big picture that emerges from the reports is of a sophisticated, independent and concerted investigation process on the Israeli side. Fair-minded people would have difficulty squaring this picture with the vindictive demand to haul Israelis before the International Criminal Court. Regrettably, when it comes to Israel, fairness has never been the strong suit of the Human Rights Council.

The writer is an international law consultant and a former senior legal adviser to the IDF

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