Just four days before Justice Richard Goldstone's shocking admission that his controversial report on Israeli war crimes committed during the 2008-2009 Gaza war was flawed, I participated in a panel debate with him at Stanford Law School. During the debate, Goldstone repeated one of his standard talking points -- that none of the factual accounts in his report had been challenged. But then, under pressure from a line of argument, he backed off and acknowleged, perhaps for the first time, that some of the facts in the Goldstone Report were in dispute. And he suggested that his report might have been different had his fact-finding mission had access to Israeli evidence.
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Four days later, Goldstone published his mea culpa op-ed in the Washington Post -- an admission of fault he had reportedly been unwilling to make in a draft op-ed submitted to the New York Times less than a week before the debate. In the Post article, Goldstone wrote, "If I had known then what I know now, the Goldstone Report would have been a different document." But he went further still, acknowledging that his report was wrong to allege that Israel had deliberately targeted civilians.
I can only speculate about Goldstone's discomfort at having his professional work challenged in such sharp terms -- and whether the debate in some way precipitated his admission of fault. But the criticism was deserved. The Goldstone Report asserted that the Gaza war was an Israeli assault on the "people of Gaza as a whole ... aimed at punishing the Gaza population for its resilience." Choosing to focus on 36 specific incidents involving alleged Israeli wrongdoing, the report gave Hamas a free pass for most of its war crimes while concluding that Israel's campaign "was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability."
Peter Berkowitz and I represented the side challenging the Goldstone Report against Palestinian panelists Noura Erakat and Victor Kattan. Goldstone participated as a "discussant," speaking for 10 minutes at the beginning and end of the debate, but he kept a stone face during the two-hour back-and-forth.
Berkowitz and I focused on evidentiary problems, such as the report's refusal to credit any exculpatory Israeli evidence, even photographs. We highlighted the discrepancies between the legal standards applied by the Goldstone Report and those required by international law, such as the report's insinuation that any collateral damage to civilians constitutes a war crime. And we noted the disturbing tone of the report, which employed inflammatory language against Israel, while treating Hamas so tenderly that it never once, in the course of its 575 pages, acknowledged that Hamas is a terrorist organization under international law, that it had carried out suicide bombings, or that it explicitly seeks the destruction of the state of Israel.
Goldstone's retraction addresed some of these points: that the allegations were not based on evidence of Israeli motives, but, rather, on his team's presumptions in the absence of any hard evidence -- a point we made repeatedly in the Stanford debate. Goldstone also admitted that Hamas is "an organization that has a policy to destroy the state of Israel" and that Hamas should be called to account for its violations of the laws of war. Finally, Goldstone noted that the U.N. Human Rights Council, which commissioned the report, has a "history of bias against Israel [that] cannot be doubted," and he denounced the council's refusal to address "heinous" acts by Hamas against Israelis.
The motivation for Goldstone's about-face is still unclear; what is not is that his contrition is far from complete. The Goldstone Report was full of disturbing accusations against Israel and no-less-disturbing omissions of Hamas's crimes; it distorted the factual record and digressed into vile anti-Israel propaganda. Goldstone has not yet disavowed these sections of the report. While Israelis are delighted by the measure of vindication, President Shimon Peres expressed the sentiments of many when he opined the weekend after Goldstone's op-ed appeared that Goldstone still owes the state of Israel an apology. In many respects, the report's damage to Israel's reputation and the attendant boost to Hamas's legitimacy are irreversible.
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