Goldstone's Legacy for Israel

This essay is adapted from the introduction to The Goldstone Report: The Legacy of the Landmark Investigation of the Gaza Conflict (Nation Books).



A sprawling crime scene. That is what Gaza felt like when I visited in the summer of 2009, six months after the Israeli attack. Evidence of criminality was everywhere-the homes and schools that lay in rubble, the walls burned pitch black by white phosphorus, the children's bodies still unhealed for lack of medical care. But where were the police? Who was documenting these crimes, interviewing the witnesses, protecting the evidence from tampering?

For months it seemed that there would be no investigation. Many Gazans I met on that trip appeared as traumatized by the absence of an international investigation as by the attacks. They explained that even in the darkest days of the Israeli onslaught, they had comforted themselves with the belief that, this time, Israel had gone too far. Mona al-Shawa, head of the Women's Unit at the Palestinian Centre for Human Rights, told me that Gazans took great solace from news of pro-Palestinian protesters filling the streets of London and Toronto. "People called it war crimes," she recalled. "We felt we were not alone in the world." It seemed to follow from these expressions of outrage that there would be serious consequences for the attacks-criminal trials for the perpetrators, sentences. And under the glare of international investigation, Israel would surely have to lift the brutal embargo that had kept Gaza sealed off from the world since Hamas came to power. Those who really dared to dream convinced themselves that, out of the lawlessness and carnage, a just peace would emerge at last.

But six months later, an almost unbearable realization had set in: the cavalry wasn't coming. Despite all the righteous indignation, Israel had not been forced to change its behavior in any way. Gaza's borders were still sealed, only now the blockade was keeping out desperately needed rebuilding supplies in addition to many necessities of life. (It would take Israel's lethal attack last year on a humanitarian aid flotilla for a debate about the siege to begin in earnest.) Even worse, the people I met were acutely aware that they could find themselves trapped under Israeli air bombardment again tomorrow, for any arbitrary excuse of Israel's choosing. The message sent by the paralysis of the international legal system was terrifying: Israel enjoyed complete impunity. There was no recourse.

Then, out of nowhere, a representative of the law showed up. His name was Justice Richard Goldstone, and he was leading a fact-finding mission for the United Nations. His mandate was to assess whether war crimes had been committed in the context of the attack. I happened to be in Gaza City when Justice Goldstone was wrapping up his public hearings and met several people who had testified before him, as well as others who had opened their homes to the mission, showing the scars left by Israeli weapons and sharing photographs of family members killed in the attacks. Finally some light seemed to be shining on this rubble-choked strip of land. But it was faint, and many Gazans remained skeptical that justice would follow. If the attacks had failed to provoke action, they reasoned, what hope was there that words in a report would awaken the world? This caution, it turns out, was a wise form of self-preservation.

The attempts to block, then sabotage, then bury the Goldstone Report began before a single word had been written. The Israeli government rejected the original decision by the UN Human Rights Council to investigate allegations of war crimes during the Gaza attack. The council was hopelessly biased, Israel claimed, and the January 12, 2009, resolution creating the fact-finding mission was, according to Israel's ministry of foreign affairs, "one-sided and irrelevant." It is true that the original mandate of the mission called only for an investigation of violations committed "by the occupying Power, Israel, against the Palestinian people." But when Justice Goldstone took the top job and announced that the mandate had been expanded to include possible crimes committed by Palestinians "whether before, during or after" the attacks, Israel flatly refused to acknowledge this new reality. "There is no formal expansion of the mandate," foreign ministry spokesman Yossi Levy insisted, against abundant evidence to the contrary. He added, "We will not cooperate with the mission, because its duty is not to find the truth but to find semi-judicial ways to attack Israel."

When it became clear that the mission would proceed despite this obstructionism, the Israeli government switched to a new strategy: doing almost everything in its considerable power to sabotage Goldstone's work. To this end, the Israeli government refused to allow the UN team to travel inside Israel. That meant that to get into Gaza, members had to go through Egypt. It also meant that Goldstone's investigators could not travel to Sderot and Ashkelon to hear from Israeli victims of Qassam rocket attacks-critical testimony if the mission was to fulfill its mandate to investigate crimes on all sides. Israel's strategy was transparent enough: it would force Goldstone to produce a one-sided report, which it would then enthusiastically dismiss for being one-sided.

It didn't work. To get around the government roadblocks, Goldstone flew Israelis to Geneva so he could hear their testimony in person. When the report came out, it reflected the scale of the crimes committed by each side, concentrating mostly on Israel's actions, including attacks on houses, hospitals and mosques that together killed scores of people, as well as attacks on civilian infrastructure such as water installations, agricultural facilities and factories. But the report did not give Hamas a pass. Goldstone concluded that the launching of rockets and mortars into populated areas "where there is no intended military target"-a practice used by Hamas's military wing as well as by other armed Palestinian groups-"indicates the commission of an indiscriminate attack on the civilian population of southern Israel, a war crime, and may amount to crimes against humanity." He also accused Hamas of "extrajudicial executions" in the Gaza Strip and the Palestinian Authority of repression and possibly torture in the West Bank.

The Goldstone Report is a serious, fair-minded and extremely disturbing document-which is precisely why the Israeli strategy since its publication has been to talk about pretty much everything except the substance of the report. Distractions have ranged from further posturing about the UN's bias, to smear campaigns about Justice Goldstone's personal history, to claims that the report is an integral part of a grand conspiracy to deny Israel's right to exist. Dore Gold, a former Israeli ambassador and top political adviser, said the report was "the most serious and vicious indictment of the State of Israel bearing the seal of the United Nations" since the UN equated Zionism with racism in 1975 and "an assault on Israeli society as a whole," while Prime Minister Benjamin Netanyahu explained that "there are three primary threats facing us today: the nuclear threat, the missile threat and what I call the Goldstone threat." The phrase "blood libel" was thrown around with great promiscuity, disgracefully equating the Goldstone Report with the anti-Semitic trials of the Middle Ages in which Jews were accused of drinking the blood of Christian children. (For some reason this seems to be a problem only when Sarah Palin abuses the term.)

Given this kind of incitement from the top, it's little wonder that the 72-year-old judge was very nearly prevented from attending his grandson's bar mitzvah in a Johannesburg suburb, with the synagogue worried about violence breaking out. "I could not believe that political anger against him-which people had every right to express-had evolved into an uncontrolled and unconscionable rage that sought to violate the spirit of one of the most sacred aspects of formal Jewish tradition," observed noted South African judge Albie Sachs.

Israel has no shortage of critics, many of them Jewish. So what was it about Goldstone that ignited this conflagration? The likeliest answer lies in the particular rhetorical techniques Israel's leaders reliably employ to defend their actions. For decades, Israeli officials have deflected any and all human rights criticisms by claiming that Israel was being unfairly "singled out" by those who claim to care about international law but who look the other way when equally serious crimes are committed by other states. The problem posed by Goldstone was that his record as a judge on the world stage made it impossible for Israel to make this claim with any credibility.

Goldstone began his judicial career as one of a handful of liberal judges serving on the South African bench during the apartheid era. Though required to enforce the country's brutal discriminatory laws, these judges were also able to chip away at the system from within, helping to loosen the grip of apartheid in its final years. A 1982 ruling by Goldstone, for instance, blocked judges from evicting blacks and "coloreds" from their homes to make way for whites-only neighborhoods without considering whether suitable alternative accommodations could be found, a requirement that made it virtually impossible to enforce the much-hated Group Areas Act. As apartheid weakened, Goldstone began playing a more activist role, exposing a system of extrajudicial death squads within South Africa's police and military-crimes that eventually came before the country's Truth and Reconciliation Commission.

Goldstone's contribution to building South Africa's first multiracial democracy eventually took him to the international arena, where he sought justice for war crimes, ethnic cleansing and genocide as chief prosecutor of the UN's International Criminal Tribunals for the former Yugoslavia and for Rwanda. It was here that Goldstone began to dedicate his life to the post-Holocaust pledge of "never again"-never again to anyone. "If future perpetrators of genocide, crimes against humanity, and serious war crimes are brought to justice and appropriately punished," he wrote in a 2001 essay, "then the millions of innocent victims who perished in the Holocaust will not have died in vain. Their memory will remain alive and they will be remembered when future war criminals are brought to justice. And, it is certainly not too much to hope that efficient justice will also serve to deter war crimes in the future and so protect the untold numbers of potential victims." The judge was always clear that this quest for justice was deeply informed by his Jewishness. "Because of our history, I find it difficult to understand how any Jew wouldn't instinctively be against any form of discrimination," he told the Jerusalem Report in 2000.

It is this theory of justice-a direct response to the Nazi Holocaust-that Justice Goldstone brought to his work in Gaza in 2009, insisting that his fact-finding mission would examine the crimes committed both by Israelis and Palestinians. For Israel's leaders it was terrifying when Goldstone took on the Gaza assignment precisely because there was absolutely no way to claim that the judge was "singling out Israel" for special condemnation. Clearly and indisputably, Goldstone was applying the same principles to Israel that he had systematically applied to other countries for decades. The only thing left for Israel and its allies to do was to make sure the report's recommendations never came before a judicial body with any teeth. In the United States the job was easy: pro-Israel lobbyists handily persuaded the House of Representatives to declare the report "irredeemably biased and unworthy of further consideration or legitimacy," with an anti-Goldstone resolution passing by a vote of 344 to 36. In the occupied territories, the job of burying Goldstone required some very ugly tactics. According to a January 17, 2010, report in Haaretz, Palestinian Authority President Mahmoud Abbas was informed that "if he did not ask for a deferral of the vote [at the Human Rights Council] on the critical report on last year's military operation, Israel would turn the West Bank into a 'second Gaza.'"

But while Western governments continue to protect Israel from accountability, insisting that economic sanctions are off the table, even welcoming Israel into the Organization for Economic Co-operation and Development, civil society around the world is filling the gap. The findings of the Goldstone Report have become a powerful tool in the hands of the growing movement for Boycott, Divestment and Sanctions, which is attempting to pressure Israel to comply with international law by using the same nonviolent pressure tactics that helped put an end to apartheid in South Africa. A new book, The Goldstone Report: The Legacy of the Landmark Investigation of the Gaza Conflict, will allow many more people to read the text of the report, along with contextualizing analysis. And they will be free to make their own judgments about whether Israel has been unfairly "singled out"-or whether, on the contrary, it is finally being held to account.

One of the most remarkable responses to the report came in January 2010, when a coalition of eleven leading Palestinian human rights groups called on Hamas and the Palestinian Authority to investigate Goldstone's allegations that they were complicit in war crimes-despite the fact that the Israeli government had refused to launch an independent investigation of the far more numerous allegations leveled against it in the report. Theirs was a deeply courageous position, one that points to what may prove to be the Goldstone Report's most enduring legacy. Although most of us profess to believe in universal human rights and oppose all crimes of war, for too long those principles have been applied in ways that are far from universal. Too often we make apologies for the crimes of "our" side; too often our empathy is selectively deployed. To cite just one relevant example, the Human Rights Council has frequently failed to live up to its duty to investigate all major human rights abuses, regardless of their state origins. So while the council boldly created the Goldstone mission to investigate crimes in Gaza, it stayed scandalously silent about the massacres and mass incarcerations of Tamils in Sri Lanka, which were alleged to have taken place within months of the Gaza attack.

This kind of selectivity is a gift to defiantly lawless governments like Israel's, since it allows states to hide behind their critics' hypocrisy. ("They should call us the day the Human Rights Council decides on a human rights inquiry on some other place around the globe," Israeli foreign ministry spokesman Yigal Palmor said, explaining away his government's refusal to cooperate with Goldstone.) But a new standard has been set. The Goldstone Report, with its uncompromising moral consistency, has revived the old-fashioned principles of universal human rights and international law-enshrined in a system that, flawed as it is, remains our best protection against barbarism. When we rally around Goldstone, insisting that this report be read and acted upon, it is this system that we are defending. When Israel and its supporters respond to Goldstone by waging war on international law, characterizing any possible legal challenge to Israeli politicians and military officials as "lawfare," they are doing nothing less than recklessly endangering the human rights architecture that was forged in the fires of the Holocaust.

One of the people I met in Gaza was Ibrahim Moammar, chair of the National Society for Democracy and Law. He could barely contain his disbelief that the crimes he had witnessed had not sparked an international legal response. "Israel needs to face war crimes trials," he said. He is right, of course. In a just world, the testimonies collected by Richard Goldstone and now published in book form would not merely raise our consciousness; they would be submitted as evidence. But for now, in the absence of official justice, we will have to settle for what the survivors of Argentina's most recent dictatorship have called "popular justice"-the kind of justice that rises up from the streets, educating friends, neighbors and family, until the momentum of its truth-telling eventually forces the courts to open their doors.

It starts with reading the report.