Richard Falk
Foreign Policy (Opinion)
April 22, 2011 - 12:00am

Ever since it first struck the raw nerve of Israeli political consciousness, I thought it misleading to associate the Goldstone Report so exclusively with its chair, Judge Richard Goldstone. After all, despite his deserved prominence as an international jurist, he was the least qualified substantively of the four members of the mission. Undoubtedly, part of the intensely hostile Israeli reaction of their highest political leaders had to do with the sense that Goldstone as a devoted Zionist had been guilty of betrayal, even of ‘a blood libel’ against the Jewish people, because he seemed to be elevating his fidelity to the ‘law’ above that of tribal loyalties, and according to Tel Aviv he should never have been mixed up with such a suspect entity as the UN Human Rights Council in the first place.

What should be observed, and stands out over time, is the degree of importance that even the extremist Israeli leadership attaches to the avoidance of further stains on their reputation as a law abiding political actor. This seems true for the Israeli leadership even when the assessing organization is the UN Human Rights Council that Israel, as well as the U.S. Government, never misses the chance to denounce and defame. Implicit in this Israeli search for vindication is their implicit acknowledgement that the UN is, after all, a major site of struggle in the ongoing legitimacy war being fought against Palestinian claims of self-determination. This acknowledgement of importance has been expressed more recently by Netanyahu’s inappropriate insistence that in view of the Goldstone retreat, the UN retract the report in its totality.

This assessment was embarrassingly confirmed by the reaction of the U.S. Senate to Goldstone’s Washington Post op/ed of April 1st when, two weeks later on, it unanimously passed a resolution calling on the UN “to reflect the author’s repudiation of the Goldstone report’s central findings, rescind the report and reconsider further Council actions with respect to its findings.” It also asked the UN Secretary General, Ban Ki Moon, “to do all in his power to redress the damage to Israel’s reputation.”

This ill-informed and inflammatory wording is quite extraordinary, starting with the reference to Goldstone as ‘the author’ of the report, thereby completely overlooking the reality that it was a joint effort, that his input was probably the smallest, and the other authors have reaffirmed their support for the entire report subsequent to the Goldstone retreat. What is mostly revealed by this Senate initiative is the blatant partisanship that is now unquestioned in official Washington. This unsubtle disregard for international law and the authority of the UN should at the very least encourage the Palestine Authority to seek other auspices for any future negotiations with Israel than what is provided by the U.S. Government.

It is probably true that if Goldstone had not been so vilified for his association with the report it would have likely experienced the same fate as thousands of other well documented UN reports on controversial issues. By lending his name to the fact-finding mission and its outcome, Goldstone became an unwilling lightning rod, the target of vicious attacks, but also heralded at the time by fair-minded persons around the world for his fidelity to the law, even in the face of such hostile fire. In this regard, Goldstone became a sacrificial scarecrow that failed in his appointed role of keeping the birds of prey at a safe distance. In effect, how could Israel attack one of their own if the assessment of their behavior produced findings of severe violations of international humanitarian law? How could such findings be avoided given the widely known characteristics of Operation Cast Lead? There is a double irony present: Goldstone was partly selected to head this sensitive undertaking because, as a known supporter of Israel, he would make it harder for Israel to complain about UN bias so as to deflect attention away from the message; but precisely because of the difficulty posed for Israel’s propaganda machine by Goldstone’s credibility, the level of attack on him reached hysterical heights, and evidently exerted such intense pressure that he eventually made an awkward and unprecedented partial repudiation of the report that pleases neither side.

Two other aspects of the situation are often neglected or misstated. First of all, several other respected international studies had already confirmed most of the conclusions reached by the time the Goldstone Report was released in September 2009. Other prior noteworthy reports on the international law issues including Human Rights Watch, Amnesty International, B’Tselem, Al Haq, and especially the comprehensive report of an earlier detailed and authoritative fact-finding team composed of internationally respected international law experts under the leadership of John Dugard, a leading South African jurist and former UN Special Rapporteur for Occupied Palestine carried out on behalf of the Arab League. Against such a background, in a substantive sense the Goldstone Report did not say anything that was not already well established by a highly credible accountability community of NGOs, journalists, and an array of UN humanitarian workers and civilians who were on the scene during the attacks. Such an overwhelming informed consensus is what makes such a mockery of this effort by the U.S. State Department and the Senate to seize on the Goldstone retreat as a new occasion to repudiate the report as a whole, and throw once more a blanket of impunity over Israeli defiance of international law.

The second element that should be kept in mind, but is rarely ever acknowledged even by those who stand 100% behind the report, is that it was not, as the media mostly claimed, unduly critical of Israel. On the contrary, in my view, the report was one-sided, but to the benefit of Israel. Let me mention several evidences of leaning toward Israel: the report proceeds on the basis of Israel’s right of self-defense without bothering to decide whether in a situation of continuing occupation a claim of self-defense is ever available under international humanitarian law, although Israel was entitled to rely on force to the extent necessary to uphold specific security interests arising from the rocket attacks. Furthermore, the report did not examine whether the factual conditions prior to the attacks supported any security claim considering the success of the truce to cut rocket fire to almost zero in the months preceding the attacks, a truce that had held until Israel provocatively broke it on 4 November 2008 by conducting a lethal raid within Gaza. Beyond this, the claimed security justification seemed artificially fashioned to serve as a rationalization for the Israeli aggressive and unlawful all out military assault against Gaza that was mostly motivated by a series of Israeli claims that were quite independent of security in Gaza. The real goals were as follows: to destroy Hamas; to induce the return of the captured Israeli soldier Gilad Shalit, to punish Gazans for voting in favor of Hamas back in 2006. In addition, it was clear that the IDF had been planning Operation Cast Lead for six months prior to launching the attack on 27 December 2008, and for a variety of reasons other than securing southern Israel against rockets: striking hard at Gaza before Obama took office, influencing in Kadima’s favor the Israeli domestic elections that were about to take place, restoring confidence in the IDF after its failures in the Lebanon War of 2006, and sending a message to Iran that Israel would not hesitate to use overwhelming force whenever its interests dictated and without restraint.

The Goldstone Report did appropriately emphasize the severe Israeli departures from the law of war by attacking with disproportionate and indiscriminate force against a crowded, mainly urbanized society. But it failed to emphasize a distinctive feature of the attacks—the denial to the civilian population of Gaza of the option to leave the war zone and become refugees, at least temporarily. To keep civilians, especially children, the aged, and the disabled, so confined leaves permanent psychic wounds as has been reported by many post-attack studies and residents of Gaza, but is not disclosed by the casualty figures that count only the dead and the wounded. Part of the public horror of Operation Cast Lead resulted from the 100:1 ratio of war dead, which is a vivid confirmation of the defenseless plight of the Gazan population and the helplessness of Hamas protectors when confronted by the Israeli war machine. Despite this indicator of one-sidedness, the casualty comparison dramatically understated the real losses to the Palestinians. If the psychologically damaged are added to the Palestinian total and the friendly fire victims are subtracted from the Israeli side, reducing their total deaths from 13 to 6 or 7 the ratio of losses is gigantically uneven. In view of this one-sidedness, together with Israel’s initiation of the attacks and its role as occupying power, the report gave excessive emphasis to Hamas violations of international humanitarian law, which should have been noted, but not treated, as was the case, as virtually symmetrical with those of Israel. To treat as balanced that which is so manifestly unbalanced is to falsify the relevant reality.

As has been pointed out in the media, including by Goldstone, his retraction was limited to the admittedly important issue of whether Israel intentionally targeted civilians as a matter of policy. Even this limited retraction is unconvincing because it rests so heavily on Israel’s self-investigations, which the post-Goldstone UN fact-finding mission jointly headed by an American judge, Mary McGowan Davis and the Swedish judge, Lennart Aspergen, found in their recent report failed to meet international standards. As mentioned previously, the retraction by Goldstone was also seriously undermined by the joint statement of the three other members of the Goldstone mission who publically reaffirmed the report in its totality, which never made the sweeping accusation of Israel that Goldstone retracted!
Only half satirically, I would think that it might be time to rechristen the Goldstone Report as the Chinkin Report, or blandly let it be henceforth be known as the ‘Report on Israeli and Hamas War Crimes and Crimes Against Humanity during Operation Cast Lead.’ Whatever the name, the main allegations have been confirmed over and over again, and it is now up to the governments making up the UN General Assembly and Security Council to show the world whether international criminal accountability and the International Criminal Court is exclusively reserved for sub-Saharan African wrongdoing!

Many have asked whether the Goldstone retraction will doom the future of the report. In my view, rather than performing a funeral rite, Goldstone miscalculated, and has given the report a second life. It may still languish in the UN System, thanks to the geopolitical leverage being exerted by the United States to ensure that Israeli impunity is safeguarded once more, but this new controversy surrounding the report has provided civil society with renewed energy to push harder on the legitimacy agenda that has been animating the growing Palestinian global solidarity movement. Never before has the Goldstone Report received such sympathetic attention even from American mainstream sources. Astonishingly, even the New York Times columnist Roger Cohen chided Goldstone for trying belatedly to distance himself from the report, going so far as to suggest that his behavior has contributed a new verb, ‘to Goldstone,’ to the language of politics; “Its meaning: to make a finding, and then partially retract it for uncertain motive.” Cohen’s formal definition—”to ‘Goldstone’: (Colloq.) To sow confusion, hide a secret, create havoc.”

History has funny ways of reversing expectations. Just as most of the world was ready to forget the allegations against Israel from the ghastly 2008-09 attacks on Gaza and move on, Richard Goldstone inadvertently wakes us all up to a remembrance of those morbid events, and in the process, does irreparable damage to his own reputation while trying to redeem himself in certain circles.
It is up to persons of conscience to seize this opportunity, and press hard for a more even handed approach to the application of the rule of law in world politics. There is much righteous talk these days at the UN and elsewhere about the ‘responsibility to protect,’ contending that the Qaddafi threats directed at Libyans civilians justified a No Fly Zone and a full-fledged military intervention from the air undertaken with UN blessings and NATO bombs and missiles, but not even a whisper of support for providing the still beleaguered people of Gaza with a No Fly Zone despite frequent violent incursions by Israel and a debilitating unlawful blockade that has lasted almost four years, a severe form of collective punishment that directly violates Article 33 of the Fourth Geneva Convention. This blockade continues to block the entry of building materials needed in Gaza to recover from the devastation caused more than two years ago.


American Task Force on Palestine - 1634 Eye St. NW, Suite 725, Washington DC 20006 - Telephone: 202-262-0017