Israel’s War Against Palestine: Documenting the Military Occupation of Palestinian and Arab Lands

Goldstone’s gambit

23 September 2009

By Claudia Braude, Haaretz – 23 Sept 2009

SOUTH AFRICA – Ask Richard Goldstone what possessed him, a Jew and self-described supporter of Israel, to accept the job of chief United Nations investigator of alleged war crimes in Gaza last winter, and the legendary South African judge invokes his past. His decision in 1980 to accept the racist South African government’s offer of a judgeship was “the most difficult of my career,” he has said. That government occasionally appointed liberal judges to “make good its boast of having an independent judiciary,” he said. The danger of lending legitimacy to an immoral system by serving it was very real.

But ultimately, his hope that the legal system could be used to effect social change was vindicated when one of his rulings effectively ended South Africa’s policy of racially-segregated neighborhoods.

On September 15, Goldstone submitted his team’s report on human rights violations in the Gaza conflict to the UN Human Rights Council. The 574-page review accused both Israel and Hamas of war crimes and possibly crimes against humanity. It also said that despite its claims to have thoroughly investigated allegations against its military’s conduct, Israel’s government “had not carried out any credible investigations”; nor did Hamas. It therefore recommended that the Security Council require both parties to conduct such investigations and report back within six months on the results. If either party fails to do so, the Security Council should refer the matter to the International Criminal Court in The Hague, it added.

Israel and its supporters predictably lambasted the report, and especially its “dangerous and totally unwarranted equivalence between the Israel Defense Forces and the terrorists of Hamas,” as the Anti-Defamation League put it.

Less predictable is what the Human Rights Council will do. Its repeated condemnations of Israel – 15 in less than two years, compared to zero for any other country – have led to accusations of anti-Israel bias. Will it now take up Goldstone’s report in its entirety, or, as per its original resolution ordering the investigation, only address Israel’s alleged crimes?

The answer to that question will determine whether Goldstone achieves his stated objective of expanding the UN’s purview of human rights, as he did South Africa’s, or whether, as his critics predict, he will be shown up as a naive idealist, one who enabled an implacably Israel-obsessed body to use the findings of a distinguished pro-Israel Jewish jurist to justify its actions.

Interviewed four days before the report’s release, Goldstone was upbeat about the prospects and unapologetic about his decision to take up the job.

“I was driven particularly because I thought the outcome might, in a small way, assist the peace process,” he told the Forward. “I really thought I was one person who could achieve an even-handed mission.”

Goldstone is widely credited with having helped bring down apartheid through a government-commissioned investigation he led that exposed the existence of covert state-sponsored terror units deployed by South Africa against its own black citizenry. Nelson Mandela, the country’s first post-apartheid president, later appointed Goldstone to the country’s highest court. More recently, Goldstone has served as chief UN prosecutor of war crimes in Rwanda and the former Yugoslavia.

A proud Jew

Goldstone is proud of his Jewish identity and links it firmly to his human rights concerns. A president emeritus of World ORT, a Jewish organization that runs several vocational schools in Israel, he also serves on the Hebrew University of Jerusalem’s board of governors.

Characterizing the struggle for human rights as “a secular religion of our time,” Goldstone once described Israel’s existence as its Jewish embodiment. “This struggle for human rights has been in the most profound existential sense very much the struggle for ourselves – for our own Jewish destiny. For the creation of the State of Israel,” he said.

“I’ve been involved with Israel since I can remember,” Goldstone told the Forward. “My mother was very active in the women’s Zionist movement.” Also, his daughter Nicole lived in Israel.

But he insisted his appointment was due solely to his background in international criminal justice. “I’ve no doubt the fact I’m a Jew wasn’t the reason I was approached,” he said.

On human rights, Goldstone told the International Association of Jewish Lawyers and Jurists in 1995, “We must not only insist that we be judged by those standards by our neighbors and by the international community. We should indeed object vehemently when any [one] seeks to judge us by any other standards.”

In its original January 12 resolution, the Human Rights Council called for an investigation of Israel’s alleged human rights violations – and only Israel’s. Given this one-sided mandate, many were mystified when Goldstone agreed to head up the probe. Former UN high commissioner for human rights Mary Robinson had already declined the job, describing the council as “guided not by human rights, but by politics” and specifically citing the resolution’s exclusive focus on Israel.

“Richard was uncertain, but people encouraged him to accept, saying because he’s a Jew with a legal background, he’d give a fair assessment,” an old family friend said.

But according to Goldstone, when council president Martin Uhomoibhi of Nigeria appointed him, he accepted only on condition that Uhomoibhi expand the mandate to look at both sides. Uhomoibhi agreed, he added.

Indeed, when Uhomoibhi officially invited individuals to submit evidence about alleged violations, he noted that “pursuant” to the council’s resolution, the Goldstone task force would “investigate all violations of International Human Rights Law and International Humanitarian Law” connected to the fighting in Gaza from December 27, 2008 to January 18, 2009, whether committed “before, during or after.”

This change in the mandate – and especially inclusion of the months before the war, when Hamas was launching rockets into Israel – allowed Goldstone to frame his mission as examining abuses by “both sides.”

Not everyone agrees this really changed anything. Irwin Cotler, an international law expert and former Canadian justice minister, said, “As a Supreme Court judge, he knows that the mandate still stands unless it is either altered or in some way repealed and replaced by a new resolution of the council.”

“I believe Goldstone himself wishes to engage in a fair-minded mission,” Cotler added. “But this mission has been tainted from the beginning. I don’t know why he has accepted such a flawed mandate, unless he believes he can alter the whole process single-handedly and redeem it.”

Israel, citing the one-sided council resolution, refused to cooperate with Goldstone’s probe; the council ultimately paid for Israeli witnesses to travel to Geneva to testify.

“The big question is what the UN does with the report,” said Selma Browde, an anti-apartheid and Middle East peace activist. Her husband, Jules Browde, an eminent human rights lawyer and former counsel for Mandela who has long known Goldstone, added, “It would be tragic if the council misused it in a less than even-handed way.”

Goldstone, his work now done, sounded resigned. “What they do with the report is out of our hands,” he said. “I am not prepared to speculate on the consequences of an unevenhanded response.”

By arrangement with the Forward

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