Justice Goldstone at Brandeis

Justice Richard Goldstone spoke at Brandeis University on November 5, with former Israeli UN ambassador Dore Gold, on a program entitled “The Challenge of the UN Gaza Report.” Goldstone, a South African jurist and former prosecutor of International Criminal Tribunals for the former Yugoslavia and Rwanda, headed the UN Fact-Finding Mission on the Gaza Conflict, established by the UN Human Rights Council in April. The Mission’s charge was to “‘to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.’” The Mission “interpreted the mandate as requiring it to place the civilian population of the region at the centre of its concerns,” and defined the “context” as the period 19 June 2008 to 31 July 2009.

The report notes that the “Mission repeatedly sought to obtain the cooperation of the Government of Israel,” unsuccessfully, which “prevented it from meeting Israeli Government officials” and also “from travelling to Israel to meet Israeli victims and to the West Bank to meet Palestinian Authority representatives and Palestinian victims.” “The Mission has enjoyed the support and cooperation of the Palestinian Authority” and “[d]uring its visits to the Gaza Strip [through Rafah] the Mission held meetings with senior members of the Gaza authorities and they extended their full cooperation and support to the Mission.” The Mission received evidence from West Bank residents in Amman and from West Bankers and Israelis in Geneva also. The Mission released the the final version of its report on September 25. Inevitably, the report’s most severe findings concerned Israel, as best conveyed by excerpts from the Conclusions and Recommendations:

“1883. The Gaza military operations were, according to the Israeli Government, thoroughly and extensively planned. While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self-defense, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.

1887. The timing of the first Israeli attack, at 11.30 a.m. on a weekday, when children were returning from school and the streets of Gaza were crowded with people going about their daily business, appears to have been calculated to create the greatest disruption and widespread panic among the civilian population. The treatment of many civilians detained or even killed while trying to surrender is one manifestation of the way in which the effective rules of engagement, standard operating procedures and instructions to the troops on the ground appear to have been framed in order to create an environment in which due regard for civilian lives and basic human dignity was replaced with disregard for basic international humanitarian law and human rights norms.

1889. The repeated failure to distinguish between combatants and civilians appears to the Mission to have been the result of deliberate guidance issued to soldiers, as described by some of them, and not the result of occasional lapses.

1891. It is clear from evidence gathered by the Mission that the destruction of food supply installations, water sanitation systems, concrete factories and residential houses was the result of a deliberate and systematic policy by the Israeli armed forces. It was not carried out because those objects presented a military threat or opportunity, but to make the daily process of living, and dignified living, more difficult for the civilian population.

1893. The operations were carefully planned in all their phases. Legal opinions and advice were given throughout the planning stages and at certain operational levels during the campaign. There were almost no mistakes made according to the Government of Israel. It is in these circumstances that the Mission concludes that what occurred in just over three weeks at the end of 2008 and the beginning of 2009 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.

The report carefully situated Israel’s attack in its “political objectives with regard to Gaza and the Occupied Palestinian Territory as a whole,” notably the devastating blockade imposed on Gaza in retaliation for the election of the Hamas government, the intensifying repression in, and engorgement of, the West Bank, notably East Jerusalem, and the isolation of Gaza from the West Bank. It examined Israeli actions against Palestinians in the West Bank, and against dissidents within Israel, notably its Arab citizens, but also activists and protesters, NGOs, and the media. It examined the actions of the “armed Palestinian factions” within the Gaza Strip and in attacks on Israel from Gaza, the actions of the “Gaza authorities” and security services, and the conflict between the Palestinian Authority and Hamas. It also examined the PA’s treatment of dissent in the West Bank during Israel’s attack on Gaza. It found likely serious violations of international human rights law in all these areas; it also failed to substantiate several of Israel’s claims against the Palestinians. It recommended that Israeli corporal Galid Shalit be released. Concerning military operations the

“Mission concluded that serious violations of international human rights and humanitarian law were committed by Israel in the context of its military operations in Gaza…and that Israel committed actions amounting to war crimes, and possibly crimes against humanity. The Mission also found that Palestinian armed groups had committed war crimes, as well as possibly crimes against humanity.”

The finding of violations by both sides

“in no way implies equating the position of Israel as the occupying Power with that of the occupied Palestinian population or entities representing it. The differences with regard to the power and capacity to inflict harm or to protect…are obvious…What requires equal attention and effort, however, is the protection of all victims within international law.”

The report emphasized the need for accountability. The Mission was struck by testimony “that every time a report is published and no action follows, this ‘emboldens Israel and her conviction of being untouchable.’” The report was highly skeptical of Israel’s willingness to investigate itself, and also found accountability through domestic institutions in Gaza unlikely. It recommended, inter alia, that the Security Council require the government of Israel to conduct appropriate investigations within three months, and inform it of actions to prosecute violations within six months. The Gaza authorities were given six months to investigate and prosecute, with no interim step. Failing those outcomes, as determined by a committee of experts, the Security Council should refer the matter to the prosecutor of the International Criminal Court.

The Mission was attacked by Israel and its supporters from the time it was formed. The original mandate from the UNHRC, on January 12, while Israel’s attack was at its height, called only for investigations of Israel’s conduct. Several individuals refused to head such an investigation, until Goldstone was asked. Goldstone is a highly credible figure, a liberal South African commercial attorney who became a judge, issued rulings against apartheid, protected political prisoners, and exposed the covert security forces who had terrorized South Africa’s black population, which contributed to the final downfall of the apartheid regime. He headed the prosecution of war crimes in the former Yugoslavia and Rwanda. He is Jewish, with ties to Israel, and affirms that the Holocaust influenced his views on war crimes, though he dismisses the idea that he was selected for his background.

Goldstone accepted the appointment to head the Gaza investigation in April, only after the UNHRC president agreed to change the charge of the mission to investigate “all violations.” Goldstone stated that “[UNHRC president] Uhomoibhi explained the [revised] mandate to the Human Rights Council at a plenary session and the members of the mission have discussed it explicitly with the ambassadors of all the nations that sponsored the original resolution, and there was no objection to it. That is the mandate the mission is pursuing to the best of its ability.” The Israeli Foreign Ministry still insisted: “The only relevant mandate is the one which…was accepted in the council on 12 January 2009.” Another insistent quibble is a January 11 letter to the London Sunday Times signed by Mission member and law professor Christine Chinkin, and 26 other legal experts, stating, inter alia: “We condemn the firing of rockets by Hamas into Israel and suicide bombings which are also contrary to international humanitarian law and are war crimes…However, the manner and scale of [Israel’s] operations in Gaza amount to an act of aggression and is contrary to international law, notwithstanding the rocket attacks.” Israel’s partisans insisted that Chinkin should be disqualified; the response was that since the Mission was not investigating the decision to wage war, and since it was not a judicial proceeding, but a fact-finding mission, that Chinkin was qualified to participate.

When it was released, Israel claimed that the “intolerable report discredits the whole cause of human rights,” “does a great injustice to the cause of fighting terrorism,” and produced a laundry list of failings, beginning with the claims noted above, which had circulated all spring and summer and echoed through the autumn. Even before the report, “long list of current and former ministers and officers [could not] travel to many destinations in the world without first conferring with a special team appointed for assessing threats to senior officials,” and the “situation following the publication of the Goldstone Report is intolerable.” An Israeli committee of inquiry is adamantly opposed by defense minister Edud Barak, military chief of staff Gabi Ashkenazi, and the Knesset Foreign Affairs and Defense Committee. The government has formed a team “to prepare for a possible debate on the report by the UN Security Council in December,” and will “coordinate with allies to ensure Goldstone veto.”

An opinion poll showed that 79 per cent of Israeli Jews oppose the claim that Israel committed war crimes during the Gaza attack, and that of the 61 per cent of Jewish citizens who know the reports findings, 93.5 per cent think it is biased against the Israeli military. Human rights activist praised the report, such as attorney Majd Bader, who testified on behalf of the Public Committee Against Torture in Israel, called for the government to “consider [the report] seriously, and understand the evidentiary groundwork that it laid and adopt its conclusions.” Activist Yonathan Pollak stated that “all the human rights organizations are calling on Israel to launch an investigation into the incidents of the attack on Gaza and not refute the report’s conclusions.” Tel Aviv University law professor Eyal Gross stated: “Despite the official Israeli charges in respect to the report, it is not one-side, it is not biased against Israel, and it does not ignore Hamas’ crimes.” Columnist Yigal Sarna lamented that “to save us from ourselves we had to have Goldstone, a foreign Jewish judge who speaks English, in place of the local judges who disappeared.”

In Boston, the Jewish Community Relations Council issued a press release claiming “Jewish Community Dismayed by UN Report on Gaza War,” citing the two quibbles above, and others. The JCRC spoke by default; the Boston “progressive Jews” did not unduly exert themselves. Jews for a Just Peace linked some supportive external items from its web site. Brit Tzedek v’Shalom, the “Jewish Alliance for Justice and Peace,” slithered into apologetics: “The Goldstone report…will, on balance, probably raise more questions than it could ever answer. Tragically, what the report makes crystal clear is how treacherous and ugly the ramifications of the unresolved Israeli-Palestinian conflict are for both peoples.” The Workmen’s Circle, which styles itself after Yiddish socialism, posted nothing. The Boston Globe ran an obligatory denunciation by Michael Oren, Israel’s ambassador to the US, and a sympathetic piece by its own columnist, James Carroll.

Liberal Jewish opinion may have been lulled by the extraordinary apologetics (not the first) of Jessica Montell of B’Tselem, the Israeli human rights group, who was “disturbed by the framing of Israel’s military operation as part of ‘an overall policy of aimed at punishing the Gaza population for its resilience.’ The facts presented in the report itself would not seem to support such a sweeping conclusion.” The facts do support it, from the declared intentions of Israel’s military and civilian leadership, to catastrophic destruction that cannot be explained by military opportunity or necessity, in the report’s view. In support of her view Montell could only adduce “the very careful phrasing regarding Hamas abuses.” “The mission did not find conclusive evidence regarding Hamas’ use of mosques and civilian buildings for military purposes, nor does it criticize Hamas’ firing from and shielding themselves within civilian areas. The evidence accumulated over the past eight months regarding both these phenomenon cannot be ignored,” as if this somehow undoes Israel’s words and deeds, or equalizes the contributions of Israel and Hamas. Ambassador Gold exploited this useful idiocy in his remarks. B’Tselem did call for a public Israeli investigation, with other Israeli human rights groups.

Eminent legal scholar Richard Falk found that the report’s

“main contribution is to confirm widely reported and analyzed Israeli military practices during the Gaza war. There had been several reliable reports already issued, condemning Israel’s tactics as violations of the laws of war and international humanitarian law…Perhaps most damning of all …was the publication of a document entitled “Breaking the Silence,” containing commentaries by 30 members of the Israeli army.”

Falk objected that

“the Goldstone report endorses the misleading main line of the Israeli narrative by assuming that Israel was acting in self-defense against a terrorist adversary. The report does describe the success of the ceasefire with Hamas that had cut violence in southern Israel to very low levels, and attributes its disruption to Israel‘s attack on 4 November 2008, but nowhere does it make the inference that would seem to follow, that the Israeli attacks were an instance of the international crime of aggression.”

Falk also noted “the failure of the report to comment upon the Israeli denial of a refugee option to the civilian population trapped in the tiny, crowded combat zone that constitutes the Gaza Strip.” Despite the report’s limitations, Falk found the report offered “impeccable documentation of a crucial chapter in [Palestinian] victimization under occupation.”

A credible program about the UN Gaza report would have given Justice Goldstone forty minutes to present its findings and respond to the criticism, followed by twenty minutes of interested opinion ranging from the government of Israel to Richard Falk, followed by a discussion with the audience. The Israeli government had refused to cooperate with Goldstone’s mission, and denounced the report since mid-September, with quibbles and contrivances whose repetition before a judge would have earned a citation for contempt of court. To feature Justice Goldstone, and a semi-official spokesman like former ambassador Gold, on a program, endorsed Israel’s non-cooperation, amplified its denunciation, and delegitimized other views. It defined “the challenge of the UN Gaza Report” as something to be overwhelmed and buried. As Brandeis undergraduate Paraska Tolan wrote in the student newspaper two days before the event, Brandeis “is framing the Nov. 5 discussion as a ‘balanced debate’…When Jimmy Carter came to speak at Brandeis in 2007, he was immediately followed by Alan Dershowitz…I wonder why the Brandeis administration will not let a left-wing activist stand on his or her own.” Carter and Goldstone are not “left-wing activists” but their reception suggests the limits of acceptable critique. Brandeis University is of course named for Louis Brandeis, Supreme Court justice from 1916 to 1939, and the leading American Zionist of his day. Brandeis describes itself as “nonsectarian Jewish-sponsored,” but its current president, Jehuda Reinharz, is credited with “strengthening Jewish identity” in his tenure, after an earlier adminstration’s secular flirtation; Reinharz is leaving at the end of the academic year, with the secular trend quite vanquished.

President Reinharz introduced the event, proclaiming that

“‘Truth, Even unto Its Innermost Parts’” is not just the Brandeis motto, it is a core value of the university…It is a challenge that often is not easily met…in the long, painful, continuing strife between Israelis and Palestinians…

Whether by listening to the experience of victims of violence on both sides, standing up for the presence on the Brandeis faculty of an outstanding Palestinian professor, building a partnership with a Palestinian University or hosting appearances by senior Israeli leaders or a former controversial president, Brandeis has always been up to the challenge.”

The professor and partnership, let alone the “senior Israeli leaders” and apologetics about “victims on both sides,” do not involve the “innermost truths” about the state of Israel. Addressing those, as the “former controversial president” did, elicits at Brandeis, not heroic iconoclasm, but weeping, wailing, and gnashing of teeth. In 2006, Reinharz responded to protests and ordered an exhibit of Palestinian children’s artwork about the occupation, mounted by an Israeli Jewish student, removed. Later that year, former President Jimmy Carter was approached about speaking about his book Palestine: Peace not Apartheid. Carter accepted, but President Reinharz and the board of trustees agreed to let Carter appear only in a debate with Alan Dershowitz. Carter adamantly refused, but did speak, in January, 2007, answered submitted questions, and then left, with most of the audience, followed immediately by Alan Dershowitz. In the spring of 2007, Norman Finkelstein, embattled author of The Holocaust Industry and other sacred cows, was invited to speak, dis-invited, and finally spoke; questions began with “Do you hate your parents?” (both of whom survived Auschwitz), and got worse. The administration formed a committee to deal with Middle East speakers. In his introduction, Reinharz defined the issues as “the conduct of warfare…against non-state militants who are often hard to distinguish as they mix and melt into civilian populations…How one deals in such situations effectively and morally, with minimal injury to an opponent’s innocents while protecting one’s own, is one of the salient and complex issues of our times,” not the reasons for the warfare, such as Falk’s argument that Israel committed aggression.

Goldstone’s introduction by Professor Daniel Terris, director of the International Center for Ethics, Justice and Public Life, was conventionally polite. Terris somewhat piously stated: “This is not a debate…the goal of this evening is illumination, not confrontation.” Goldstone thanked Ambassador Gold for participating, and spent three-fourths of his time defending the report. He acknowledged some bias against Israel in the UN Human Rights Council, but also cited recent evidence of balanced views. He rejected the incessant quibbling about the Mission’s mandate, pointing out that Mary Robinson, former UN High Commissioner for Human Rights, who had rejected the original mandate, agreed with the revision, and now objected to use of her original rejection to attack the Mission. He described his strenuous, fruitless efforts to persuade the Israeli government to cooperate. He emphasized that the report was the first UN analysis of the experience of residents of southern Israel of Hamas rocket and mortar fire, from whom it took telephone testimony and testimony in Geneva. He emphasized repeatedly that Israel had a right to defend itself. He noted that the Mission was not a judicial proceeding, but an investigation, whose findings would have to be re-investigated for any possible prosecution. Finally, he presented the report’s substantive findings. He noted the Dahiya Doctrine, as enunciated by Israeli general Gadi Eisenkot: “What happened in the Dahiya quarter of Beirut in 2006 [flattened] will happen in every village from which Israel is fired on…We will apply disproportionate force on it (village) and cause great damage and destruction there…This is not a recommendation. This is a plan. And it has been approved.”

“Disproportionate force is exactly what humanitarian law, the law of war, outlaws. War crimes are committed with disproportionate force.” Goldstone quoted deputy prime minister Elie Yishai on January 6:

“It [should be] possible to destroy Gaza, so they will understand not to mess with us.” He added that “it is a great opportunity to demolish thousands of houses of all the terrorists, so they will think twice before they launch rockets.” “I hope the operation will come to an end with great achievements and with the complete destruction of terrorism and Hamas. In my opinion, they should be razed to the ground, so thousands of houses, tunnels and industries will be demolished.”

“Our investigation showed that that doctrine was applied in Operation Cast Lead,” Goldstone explained, and cited numerous examples. He emphasized that respect for humanity was essential for peace, that rule of law was essential in upholding it, and concluded with a quotation from Justice Brandeis, emphasizing the role of government in establishing, or disestablishing, rule of law by its practice and example.

Ambassador Gold was introduced by Professor Ilan Troen of the Schusterman Center for Israel Studies, founded in 2007 with a grant from the Schusterman Foundation. Lynn Schusterman of the foundation “said concerns over anti-Israel sentiments and anti-Semitic tendencies on college campuses motivated her to establish several Israel Study Centers at the University of Texas at Austin and the University of Oklahoma.” English professor Mary Campbell feared that the “‘these centers are openly centers for advocacy, that is they are not there to study the country of Israel.’” We “‘have a lot of study going on that is related to the Jewish mission of Brandeis…and rightly so.’” “‘I’m not sure who at Brandeis would have solicited a center for Israel Studies.’” To Campbell it seemed that “‘from various events, public statements, donations, solicitations and so on, as though the University is coming to see itself in an ideological way, and this will take us off the map.’” Sociology professor Gordon Fellman stated: “‘My concern is that it may be yet another effort to do positive PR for Israel.’” He wondered “whether the new center was trying to avoid or deal with problems facing the Jewish community.” Another troublesome English professor, Susan Lanser, stated during the Carter uproar: “‘I know many, many faculty who do not feel that they can speak freely about the Middle East,’” and felt that “intellectual discussions and debates seem to be determined by donors’ wishes,” which the administration firmly denied. Professor Troen, the founding director, disputed this view at the time, but his statements at the event confirmed it.

Troen began his introduction by thanking Goldstone for “agreeing to a dialogue,” as well he might, since it gave him and Gold a chance to present the Israeli government’s point of view in a sympathetic forum, to overwhelm potential Jewish critics, and impress the official view on gentile society. Troen recited all the claims about the mandate, and cited the recent US congressional resolution against the report, as if this were not the work of Israel’s lobby. For Troen, the mere fact that the report held Israel primarily responsible, and also addressed Israeli policies within the Green Line and in the West Bank, was self-evident bias. He claimed that no comparable examination of the Palestinian role was undertaken, as if Israel were not the overwhelmingly powerful occupier, and the Palestinians not brutalized and occupied. Like a hanging judge coaching his prosecutor, he outlined a brief against the report for Gold. All this was in diametric contrast to Terris’s introduction of Goldstone, above all the pieties about “illumination, not confrontation.”

Gold thanked Troen and Brandeis, but pointedly did not thank Goldstone, as Goldstone had him. He denounced the UN repeatedly, and vehemently and insistently denounced the report’s charge that Israel had deliberately attacked civilians, and extolled Israel’s military humanism, as if sheer chutzpah could erase the statements cited above, and reassemble the rubble of Gaza—to speak only of Gaza recently. During this four women students stood up and heckled mildly, which Troen scolded as “discord, disharmony and disrespect which the Goldstone report itself would decry,” as if heckling Israel was a war crime. Gold decried (quite falsely) the report’s exoneration of Hamas, decried Hamas’s attacks as if they were an existential threat, and showed video of attacks, where Goldstone had shown nothing on Gaza. He claimed that Israel had withdrawn completely from Gaza in 2005, yet missile attacks occurred, showing Hamas’s hostility. He cited Hamas booby-trapping buildings and secondary explosions from arms caches, including in mosques, which, even if partly true, hardly explains the destruction. Gold insisted the Palestinian police and installations were military, a charge the report had rejected. Gold showed video from MEMRI, the Arab defamation outfit, of a Hamas speaker extolling human shields, which the report had deplored, but did not find it evidence in itself (if it was translated correctly), or find other evidence. The report did find Israeli use of Palestinian human shields; most of all, Israel, not Hamas, kept the civilians in the war zone, which the report did not note. Gold cited Israeli warnings to civilians, which the report had rejected as inadequate, and in the case of “roof knocking,” dropping light explosives to warn of later attacks, itself a violation. Gold insisted falsely that the report had ignored officers’ warnings on legality, cited a British military expert against the Mission’s military expert, and cited Jessica Montell’s skepticism, noted above. Goldstone described, inter alia, the destruction of the American School in Gaza, a seat of secular, western values despised by Hamas.

Questions were limited to Brandeis people, and ranged from mildly supportive of the report to highly critical. One Palestinian student asked why there was no Palestinian representation. In his responses and final summary, Goldstone elaborated on the destruction in Gaza, dismissed the Israeli military investigations as “demeaning to the victims,” accepted Hamas as a sovereign government, and said that cooperating with the investigation would have raised Israel’s stature. Gold extolled Israel’s investigations, denied instances of civilian damage, condemned the UN as a hostile majority persecuting a Jewish state, and vilified Hamas, blaming it for bringing catastrophe on Gaza.

Goldstone had repeatedly insisted on Israel’s right—obligation—to defend itself, and that the investigation was concerned with the conduct of the war, not with the decision to go to war. Yet, as Richard Falk noted, Israel may wage war only if it has exhausted all other means of self-defense, else it commits aggression. The Mission implicitly recognized this argument, in beginning its time period on “19 June 2008, when a ceasefire was agreed between the Government of Israel and Hamas.” The report dated the breakdown of the ceasefire from Israeli actions, though it did not attribute responsibility. Goldstone’s insistence on the right of self-defense without qualifying it as a last resort was very misleading.

Goldstone was asked what would have constituted a proportionate response; he mentioned commando operations and bombing of suspected sites, as long as “collateral damage” was “proportionate,” which would exclude use of white phosphorus and anti-personnel munitions. This was a very lame answer, and together with the Mission’s evasion of the question of aggression, obscured the fact that Israel simply doesn’t want peace, that Israel is at war, with the Arab and Muslim world, and with the world that opposes its war. These larger questions would have emerged from a broader discussion. The Brandeis exchange defined the report as the extreme position, and Israeli government apologetics as respectable, as reported in the Boston Globe. “International jurist Richard Goldstone offered a spirited defense last night of his bitterly disputed United Nations report.” Who “bitterly disputes” the report, except for Israel and its partisans and those under their influence? “But Goldstone faced an equally spirited rebuttal from former Israeli diplomat Dore Gold.” How astonishing from a former diplomat.

Justice Goldstone and the UN Gaza Mission have introduced, hypothetically, the prospect of holding Israel accountable for its war on Gaza. The report was accepted by the UN Human Rights Council on October 16, and on November 6, the General Assembly voted to refer the report to the UN Security Council. There the US will have to throttle it on procedural grounds, or veto a resolution which would establish the expert committee and the timetable for Israel and Hamas to begin investigation and prosecution, or be referred to the prosecutor at the International Criminal Tribunal. Obama’s June Cairo speech and the likely US burial of the Goldstone report mark in six short months the alpha and omega of Obamian hope for Palestine and western Asia. Israel claims that Hamas is importing missiles, and is planning its next war on Gaza. Chief of staff Gabi Ashkenazi promises that “his troops would resume their attacks on densely populated areas, villages, cities, mosques, hospitals, kindergartens and schools because, he claimed, ‘the enemies want to impose this way of fighting on Israel’.”

HARRY CLARK may be reached at andalus01@gmail.com.

A PDF of this article with notes is at http://sites.google.com/site/alandalusdoc/justice-goldstone-at-brandeis



Harry Clark can be reached at his web site, http://questionofpalestine.net