The Debate that Changed Goldstone's Mind?

Four days before Justice Richard Goldstone's shocking retraction on Israeli war crimes, I heard him waver.

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.

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.

Nonetheless, Goldstone's disavowal of the central anti-Israel allegation of the report is sure to have some positive effect.

The most immediate effect will be on international campaigns by the Palestinian leadership and anti-Israel activists to haul Israeli officials into criminal court for their actions during the Gaza war. Just a few weeks ago, the U.N. Human Rights Council adopted a resolution co-drafted by the PLO that called for International Criminal Court prosecutions of Israelis on the basis of the report. Activists have sought to arrest former Israeli Foreign Minister Tzipi Livni, Peres, and other senior and junior Israeli officials like David Benjamin, a reservist attorney in the Israel Defense Forces, for crimes "proved" by the Goldstone Report. Efforts to prosecute Israelis will no doubt continue. Senior Palestinian figures like PLO Secretary-General Yasser Abed Rabbo have furiously denounced Goldstone's mea culpa, and a news release from the spokesman for Palestinian Authority President Mahmoud Abbas insisted that Goldstone's remarks "do not change the fact that Israel committed a massacre and war crimes in Gaza." But the legal campaign will likely now lose momentum.

A second possible result of the Goldstone op-ed could be that the public will learn to be more skeptical about future claims of Israeli wrongdoing. Like most international human rights organizations that deal with Israel, Goldstone's team treated allegations as sufficient evidence of wrongdoing. Terrorist groups like Hezbollah and Hamas have learned to exploit this practice by providing human rights groups with sympathetic "witnesses" telling tales of woe about fictional Israeli monstrosities. Tragically, wars produce a lot of perfectly legal destruction and death, and distinguishing lawful from unlawful violence is extremely difficult after the fact. Without physical evidence, which is often lacking, such tales can be impossible to verify or disprove.

When challenged about their reliance on such poor evidentiary standards, many human rights organizations prove defensive. After the Economist observed that the Goldstone Report had failed to provide evidence of key anti-Israel findings, Kenneth Roth, director of Human Rights Watch, responded that "Richard Goldstone's charge that Israel implemented a deliberate and systematic policy to inflict suffering on civilians in Gaza is ... the conclusion of the report, arrived at after a serious examination of the evidence." Now that Goldstone has come clean, perhaps the public will learn that often what are presented as "conclusions" are, in fact, little more than accusations.

What Goldstone's newfound forthrightness will not do, however, is bring about a rebirth of the peace process. The Middle East is in upheaval, the Palestinian Authority is currently boycotting talks, and, thanks in part to the Goldstone Report, Israeli doves are discredited. The Israeli left had justified Israel's 2005 unilateral withdrawal from Gaza on the "pragmatic" grounds that greater Palestinian freedom would lead to better relations with Israel and that the international community would support Israel if it needed to defend itself in the case that things didn't go as planned. Hamas's takeover of the Gaza Strip in 2007 disproved the first argument. The Goldstone Report in 2009 helped bury the second.

The Israeli electorate will not easily be convinced to withdraw from the West Bank on the basis of such arguments in the future. Goldstone may have reversed his support for his report's central anti-Israel calumny, but he cannot reverse the lessons taught to the Israeli people from this unsavory episode. Israel's right has successfully taken advantage of the public mood that the Palestinians are uninterested in peace and that the rest of the world is unwilling to extend Israel fair treatment or hold Palestinians to account for criminal behavior. If the Palestinian Authority ever decides to return to peace negotiations, it will be greeted by an Israel that has learned to be skeptical of the international community's promises of fairness and support.

I spoke to Richard Goldstone and his wife for several minutes before the debate, but I did not see him leave. His subsequent op-ed came as a pleasant surprise -- a rare event in the context of the Arab-Israeli conflict. It may be a while before the next one.



Partial Acquittal

After Richard Goldstone's mea culpa, it's up to human rights organizations to remind Israel that it's not off the hook.

Once widely vilified, Justice Richard Goldstone has been exonerated in the eyes of most Israelis since his Washington Post retraction of much of his investigation into war crimes committed by Israel during Operation Cast Lead, its 2008-2009 war with Gaza. Indeed, the judge has now received an invitation to visit Israel from one of the most reactionary members of Prime Minister Benjamin Netanyahu's cabinet, Eli Yishai -- who, during Operation Cast Lead, said Gaza should be destroyed.

But right-wing Israelis are not finished interrogating the supposed perfidy of their accusers. Increasingly, their spotlight is trained on the human rights community, including Israeli organizations that they believe cooperated with the U.N. fact-finding mission headed by Goldstone. But however emboldened the Israeli government may feel, the human rights community should not shirk the confrontation. Indeed, this is an opportunity to reassert the importance of our work, both in the context of the Goldstone process and now, two years later.

For example, my organization, B'Tselem, has been criticized for cooperating from the start with Goldstone's U.N. fact-finding mission. We did indeed press Israel to cooperate with the Goldstone Commission, even after the government made the regrettable decision to boycott the investigation. We did so believing that the U.N. process held promise for the fairest, most comprehensive assessment of the events in Gaza. In the absence of the government's endorsement, we provided the commission with our own documentation of the conflict and worked to get Israelis to testify independently. And when the Goldstone Report was released, we leveraged it to try to promote domestic Israeli processes of accountability, though we only had limited success.

None of this is to say we agreed in full with the Goldstone Report -- on the contrary. B'Tselem adopted a nuanced approach, refusing to line up alongside those who rejected the report as biased and anti-Israeli, as well as those who wholeheartedly endorsed it as proof of Israeli war crimes. At the time, B'Tselem stated that some of the report's conclusions were not sufficiently supported by the facts presented, drawing attention to precisely the point Goldstone now wishes to retract: the allegation of an intentional Israeli policy directed at killing civilians. In addition, we voiced concern that the Goldstone fact-finding mission judged Israel's conduct according to stricter standards and with a lower burden of proof when compared with its approach toward Hamas.

Goldstone's latest statement is a much shorter document than the original 575-page report. Yet it also warrants a critical reading as it leaves many more questions unanswered than it resolves.

Indeed, he now clears Israel of the unfounded accusations of crimes against humanity and the deliberate policy of targeting civilians. But his new approach, hailed by Israeli officials as a complete retraction, is limited to a small number of issues, however important they may be. Israel has not been absolved of the report's other conclusions, including those regarding the use of prohibited weapons, the lack of protection to civilians, the obstruction of medical care, and the use of Palestinians as human shields.

Curiously, in his op-ed Goldstone praised Israel for fulfilling his recommendation that it launch its own investigations into its conduct in the war. But that claim doesn't stand up to serious scrutiny. Although Israel opened 52 criminal investigations, only three led to indictments, and more than two years after the offensive, the status of the remaining cases is unclear. Meanwhile, the broader issues of policy that have raised legal concerns -- the choice of weapons, the open-fire regulations that accompanied the troops on their way to Gaza, the damage to civilian infrastructure, and the like -- have been left unaddressed by the Israeli government. Still unexplained is the fact that close to half of those killed in Gaza -- at least 758 people according to B'Tselem's painstaking documentation -- were uninvolved civilians. Were all these deaths regretful collateral damage? Or were they the result of disproportionate force and lack of appropriate caution by Israel? Israel's military is still stranded in the vast gray area between "the most moral army in the world" (as many Israeli spokespeople put it) and perpetrators of "crimes against humanity."

Goldstone, unfortunately, has removed himself as a participant from these debates. But B'Tselem and other human rights organizations will not let up so easily. Goldstone's retraction does not obviate Israel of all blame. And ignoring the remaining issues serves neither Israel's interests nor those of Cast Lead's victims. Dealing honestly with the still-unanswered questions is both a crucial exercise in addressing the past and the only way to build a better future.