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Judge Richard Goldstone Suffered for Turning His Back on Gaza, But Not as Much as the Palestinians He Betrayed

When a hero lets you down, the betrayal lasts forever. I’m not alone, I know, when I say that Richard Goldstone was a hero of mine – a most formidable, brilliant and brave judge who finally spoke truth to power in the Middle East. And then recanted like a frightened political prisoner, with protestations of love for the nation whose war crimes he so courageously exposed.

Now, after years of virtual silence, the man who confronted Israel and Hamas with their unforgivable violence after the 2008-09 Gaza war has found a defender in a little known but eloquent academic. Judge Goldstone, a Jewish South African, was denounced by Israelis and their supporters as “evil” and a “quisling” after he listed the evidence of Israel’s brutality against the Palestinians of Gaza (around 1,300 dead, most of them civilians), and of Hamas’ numerically fewer crimes (13 Israeli dead, three of them civilians, plus a number of Palestinian “informer” executions).

Professor Daniel Terris, a Brandeis University scholar admired for his work on law and ethics, calls his new book The Trials of Richard Goldstone. Good title, but no cigar. ​Terris is eminently fair. Perhaps he is too fair. He treats far too gently the column that Goldstone wrote for the Washington Post, in which the judge effectively undermined the research and conclusions of his own report that he and three others wrote about the Gaza war. The book recalls how Richard Falk, a Princeton law professor and former UN rapporteur on human rights in Gaza and the West Bank, described Goldstone’s retraction as “a personal tragedy for such a distinguished international civil servant”. I think Falk was right.

But the subtext of Terris’s book revolves around this personal tragedy rather than the tragedy of the Palestinians, many of whom put their trust in Goldstone when he arrived in Gaza, and told him of the slaughter of their families. Wa’el al-Samouni, for example, personally described to Goldstone how 23 of his family members were killed by the Israeli army, pointing out their individual photographs on a wall. “The pain of loss affected Goldstone deeply,” Terris writes. “As Wa’el completed the tour, neither man could contain his emotion, and the two clasped each other in a tearful embrace.”

So here was a Palestinian who believed in Goldstone, as did many others. Initially, some Israelis welcomed his involvement too: he was a highly admired member of South Africa’s Jewish community as well as an eminent lawyer and judge. Furthermore, he had been chief prosecutor of the International Criminal Tribunal for the former Yugoslavia.

In his last days at The Hague, I spoke to Goldstone at great length and asked him about the dividing line between war crimes and mass murder. “I suppose I’m really optimistic by nature,” he said to me. “I’ve got absolutely no doubt at all that the overwhelming majority of people in the world, in any country, are decent, good people – not evil people. There are a very small number of evil people who do so much harm… I’m not talking about evil leaders. I’m talking about ordinary people who commit terrible crimes; otherwise decent, law-abiding people. And the basic drive is fear: fear that if they don’t kill, they’ll be killed or dispossessed of their country. You have to say that ‘these people are going to kill us, these people are going to dispossess us of our homes and our land, in fact have no right to be here and are not worthy of being here anyway’.”

When Goldstone agreed to lead the UN Gaza inquiry, 13 years later, I re-read these words. How prescient would they prove to be when he travelled to Gaza, to talk to the Palestinians? The Israelis would refuse to participate in his investigation, although individual Israelis were able to give evidence to the UN in Geneva.

There was another element to our discussion at The Hague, where Goldstone had talked to me of the need for all victims to obtain justice. “It’s to officially acknowledge to the victims what happened to them,” he said. “You want society to officially acknowledge what happened to you.” But what of the million and a half Armenian victims of the 1915 genocide at the hands of the Turks, I asked him? They could not now have the benefit of Mr Justice Goldstone’s tribunal. “Well, they’ve missed it,’ he replied immediately. “The boat didn’t come into their harbour.” This was a hard judgement, I said. “But it’s true,” Goldstone replied. “They were entitled to justice. It wasn’t offered to them.”

So what would happen to the Palestinian victims of a far smaller mass killing in Gaza and of the fewer Israeli victims of the same conflict? Would Goldstone bring the boat into their harbour? Would they be offered justice? The Palestinians obviously believed the judge would offer them this. They knew he was Jewish and they didn’t care. They had heard of his courage at the Yugoslavia trials.

What they could not have known was that he would himself be referred to as “evil” by none other than that scourge of all brave liberals, Alan Dershowitz. And I remembered then what Goldstone also said to me in The Hague in 1996. Seeking justice, he said, was “the only possible deterrent to put some curb on the terrible atrocities that have been committed over 90 wars in the last half a century… if international criminal leaders know that they may be called to account, it must… in a substantial manner of cases act as a sort of a deterrent”.

So there you had it: now, for the Palestinians and for the Israelis, their own officers/soldiers/fighters/guerrillas could today surely be arraigned in the highest courts for their actions in Gaza. Goldstone’s final report in 2009 said that both Israelis and Palestinians had violated the laws of war, that Israel had used disproportionate force – which with the 1,300 to 13 exchange rate for death was a hardly avoidable verdict – and targeted Palestinian civilians and civilian infrastructure, and used civilians as human shields. It said that Hamas and other groups deliberately targeted Israeli civilians. Their third-rate weaponry and the small number of Israeli victims did not excuse them.

Then the abuse against Goldstone began, wearingly, ever more strident, hateful and personal.

Without even telling his report’s three co-authors, he wrote an article for the Washington Post which undermined all their work. The gist of this short essay – already, if oddly, rejected by the New York Times – was that later investigations by Israel (which had, of course, declined to assist the original Goldstone inquiry) indicated “that civilians were not intentionally targeted as a matter of policy”.

But that’s not what the original report said; it said that Israel deliberately employed disproportionate and indiscriminate force in order to “punish”, humiliate and terrorise civilians. Which arguably constitutes a war crime. Although Goldstone largely ignored the fact, Israeli soldiers had themselves revealed that they were told, as part of a new military policy, to regard their own lives as more important than that of civilians. An Israeli cabinet minister had actually said that Israeli soldiers “went wild” in Gaza.

It wasn’t about “intent”. It was about the mass killing of civilians with the use of tactics which would lead – inevitably and irrevocably — to a bloodbath.

Friends of Goldstone told me later that he had been “painfully” pressured by both Israel and members of his own family to recant, and was in a state of great personal distress. There was talk of how much Goldstone was influenced by Israel’s inquiry into the behaviour of its own soldiers – one of whom, it turned out rather bizarrely, had been charged with stealing a credit card in Gaza.

I was by now researching for my forthcoming book on the Middle East and wrote to Goldstone, asking if he would tell me just what happened to him in the months following his report. He replied in a message that was both kind and courteous, noting that he had read my columns with “much admiration” over many years, but adding that he had refused all interview requests on his Gaza report and that this remained his policy. It would be “invidious”, he said, to make an exception. Well, he did make an exception for Daniel Terris – and rightly so. For the Goldstone tragedy deserves an entire book, not the two chapters by Fisk which he will receive in my own work. The problem is that Terris himself finds it difficult to give Goldstone the golden mea culpa which his subject would probably have liked.

“By stepping back from the more far-reaching conclusions of the mission,” Terris writes, “he revived the opportunity to consider the laws of war in all the complexity and nuance that they demanded.” The Goldstone report “brought to the fore the challenging questions about how best to protect civilian lives in the complex circumstances of asymmetric warfare”.

There is more of this guff. I doubt if Wa’el al-Simouni found anything very complex or “asymmetric” in the slaughter of his family. And the Nuremberg judges didn’t need to spend their time waffling on about the complexity and “nuances” of the laws of war.

In reality, Goldstone was harassed by the Jewish community in South Africa. He was to have been effectively barred from his grandson’s bar mitzvah, a prohibition later rescinded. He was dropped from the board of governors of the Hebrew University. And his family – especially his daughter Nicole, who is described in Terris’s book as “an ardent Zionist” – found themselves shunned too. “Nicky’s emotions sometimes got the better of her, and on more than one occasion she had erupted at one or the other of her parents,” Terris writes.

Along with accusations that he had acted like a Nazi collaborator in excoriating the Jews of Israel, an Israeli press campaign began, based on evidence that in his native South Africa, Judge Goldstone, who had done his best to shield coloured and black citizens from the worst rigours of apartheid laws, had nonetheless supported death sentences against black defendants. He was called a “hanging judge”. Terris does not quite clear up these events, save for a comforting suggestion that the sentences were not carried out. Certainly Goldstone had not referred to these death sentences in press interviews or in publicity material prior to his appointment in The Hague or his position as leader of the Gaza report.

I still feel very sorry for Goldstone. I think he was – and remains – a fine and good man. But I feel a lot sorrier for the Palestinian civilians who suffered so cruelly from the shells, rockets and bullets of the Israelis. For all his later “distress”, they endured far more than Goldstone.

Public purgatory is one thing. Hell quite another. They trusted the gentle, thoughtful, legalistic and honourable man who came to Gaza to give them justice. And after giving them justice, Goldstone then took that justice away from them. Even the Obama government tried, in its lickspittle way, to bury the Goldstone report. Outrageously, so did Mahmoud Abbas’s so-called Palestinian “Authority”.

The Palestinians have so often been betrayed. And now by Goldstone as well. That is indeed a tragedy. His biographer now concludes that as a judge “who understood the imperfections of the law”, Goldstone “charted a course for the future of justice”. Not for the Palestinians, he didn’t.

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Robert Fisk writes for the Independent, where this column originally appeared. 

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