Richard Goldstone, a retired justice of the Constitutional Court of South Africa and former chief prosecutor of the U.N. International Criminal Tribunas for the former Yugoslavia and Rwanda, achieved notoriety as chairman of the U.N. fact-finding mission on the Gaza conflict, and especially for its report, popularly known as the Goldstone Report.
Justice Goldstone's mandate was “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.”
Although the Goldstone Report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas, the greatest attention (and controversy) focused on the report's findings concerning Israel. This site was no exception
But now Justice Goldstone writes in the Washington Post: "If I had known then what I know now, the Goldstone Report would have been a different document."
The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”
It is now established, Justice Goldstone is able to tell us, that "civilians were not intentionally targeted [by Israel] as a matter of policy."
Justice Goldstone also reminds us that, "[s]imply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies."
Early responses to the Goldstone Report possibly generated more heat than light. On the one side, it was used as a stick with which to beat Israel. On the other side, Alan Dershowitz derided the report as "scurrilous." Indeed, an entire website is devoted to (critically) Understanding the Goldstone Report.
Defenders of the Goldstone Report, at least those who did not use it simply as a stick with which to beat Israel, pointed out that the Israeli government's decision not to cooperate with Justice Goldstone's investigation limited his sources of information. Justice Goldstone, indeed, makes that point in in his Washington Post article:
The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion.
Now, as a result of "investigations published by the Israeli military and recognized in the U.N. committee’s report," Justice Goldstone is able to say that, although "the validity of some incidents that we investigated in cases involving individual soldiers" Has been established, "civilians were not intentionally targeted as a matter of policy."
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
This is not to say that Justice Goldstone suddenly has decided to white-wash Israel. Far from it. For example, he "share[s] the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum." On the other hand, Justice Goldstone writes,
I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.
Justice Goldstone also recognizes the difficulties inherent in "expect[ing] Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes." He nevertheless hoped Hamas would do so.
At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.
In contrast, "[t]he Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions — perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity."
It is not my intention to rehash the wisdom or prudence of the way Israel responded to rocket attacks from Gaza by Hamas and other, Hamas-tolerated organizations. The loss of life on all sides is to be regretted, and Judge McGowan Davis notes, for example, the absence of an "indication that Israel had opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead." And the recent resumption of (what Justice Goldstone reminds us are) "unlawful rocket and mortar attacks" by Hamas and other groups demonstrates the absence of any reconsideration by Hamas.
Blogging encourages immediate responses to events. And we cannot help forming opinions based upon what we know, or what we think we know, at the time. Nevertheless, the example of Justice Goldstone's reconsideration provides us a useful example and necessary caution to try to be more careful than we sometimes are about rushing to judgment, and the imperative need to appreciate the necessarily tentative and provisional nature of judgments based on incomplete information.
John Maynard Keynes is reputed to have said, "When the facts change, I change my mind. What do you do, sir?"
Mondoweiss, it seems, resorts to denial and prevarication. Co-proprietor Adam Horowitz writes:
Judge Richard Goldstone has a confusing and potentially damaging op-ed in today's Washington Post titled "Reconsidering the Goldstone Report on Israel and war crimes." Confusing, in that it directly contradicts Goldstone's own work and that of the UN Human Rights Council, and damaging in that it undercuts some of the most important claims of the UN mission that he led to investigate the Israeli attack on Gaza in the winter of 2008-09.
It will be interesting to watch people who lionized Justice Goldstone now try to tear him down, as well as to see the responses of those who demonized him. If David Horovitz in the Jerusalem Post is any example, it won't be pretty:
How tragic, that is, that Goldstone so misplaced his moral compass in the first place as to have produced a report that has caused such irreversible damage to Israel's good name. Tragic least of all for the utterly discredited Goldstone himself, and most of all for our unfairly besmirched armed forces and the country they were putting their lives on the line to honorably defend against a ruthless, murderous, terrorist government in Gaza.
The "if I had know then what I know now" defense Goldstone invokes to try to justify his perfidy is typically flimsy, of course.