Sunday, April 17, 2011

Remembering Goldstone

A little more than a week ago, on April 3rd, Justice Richard Goldstone upped the ante in the hasbara war with a single op-ed in the Washington Post that bore the unfortunate headline: Reconsidering the Goldstone Report on Israel and War Crimes

Oh, Lord, I thought. After more than sixty years of armed conflict in Israel-Palestine, the first real attempt to exact accountability for civilian casualties (the vast majority Palestinian) is being reconsidered?

I wasn’t surprised that the likes of Netanyahu and Lieberman immediately spun the piece, claiming “reconsideration” amounts to “retraction”. What shocked me was that so many of the Report's supporters, also transfixed by Israel’s portrayal in the piece, quickly reached that same conclusion.

For Netanyahu, explaining Goldstone’s purported about-face was simple enough. The Justice had come to his senses. Supporters of the Report had a harder task. If Goldstone had indeed changed his mind, they would have to argue that he’d actually lost it. And so they did, claiming that the unlikely (because Jewish and Zionist) hero of the Goldstone Report had, in the course of a year and a half, been “broken” by Zionist insults and ostracism; had been “crushed” by the attempt (unsuccessful) to bar him from his grandson’s bar-mitzvah; had been “browbeaten into submission” by the Report’s opponents in private meetings, whose proceedings were later spun to the Press by those same opponents who claimed for themselves miraculous powers of persuasion.

So here’s my problem. When I saw Justice Goldstone speak at Stanford Law School, five days before the Op-Ed was published, he appeared neither broken nor foolish. He gave the opening, mid-point, and closing remarks at a debate about the Report’s legitimacy, vigorously defending it. Afterwards I went up to thank him. I kept it short; he gave the impression of being uncomfortable standing around in public. He’s not the sort of person I could imagine would ever be at ease “working a room” for either love or money.

But he’s long been noted for his political as well as legal acumen. As a lawyer and jurist in South Africa he took huge moral, political, and personal risks to further human rights, risks that turned out improbably well. Here’s a partial list:

A 3rd generation white South African, Richard Goldstone struggled against Apartheid since his University days. That meant risking arrest, or worse, in a police state. He later served as a judge in South Africa during Apartheid, a move that required considerable moral courage to even consider and, some might argue, a moral obtuseness that prefigures the present controversy. But he took the risk, and South Africa, both Black and White, later judged that his rulings from the very “bench of the Beast” helped break the back of Apartheid. During the transition to multi-racial democracy, from 1990 to 1994, Nelson Mandela asked him to head a commission to investigate abuses by all political factions. During those years Goldstone was subject to numerous assassination threats and was provided, along with his wife, around-the-clock protection. It was on the basis of his work in South Africa that the United Nations asked him to be its chief prosecutor at International Criminal Tribunals attempting to deal with massive human rights abuses during armed conflict in Rwanda and the Balkans.

Does this sound to you like a man who would “break” under the pressure of public insults, however vicious?

The stated purpose of the Goldstone Report was to initiate a legal process that would eventually enforce accountability under international law for civilian casualties inflicted by both sides during during Operation Cast Lead, Israel's 2008-9 assault on Gaza. The Report did that, and more: it shamed Israel, the vastly more powerful party to the conflict, as well as the occupying power, before the world. Furthermore, it showed that a Jew and a Zionist, (and I don’t know what specific versions of either of those identities Goldstone himself embraces) could direct such a monumental undertaking fairly. For if Justice Goldstone is “colonized by Zionism”, he is equally colonized by his devotion to the Law, and in this case, as throughout his life, the Law obviously won out as he negotiated the demands of his own multiple allegiances.

Turning again to the Op-Ed, there are two separate questions. Why did he write it, and what does it say? Searching for an explanation of why he wrote it, I think Noura Erekat gets it almost right when she suggests: In the best case scenario, Goldstone’s intervention is a problematic attempt to cajole Israel to participate in the international process for accountability. If she had added Hamas to the list of those Goldstone was trying to influence, I believe she would have had it completely right.

But even if we accept this explanation, a painful question remains. With respect to Israel, was Goldstone’s cajoling dishonest? Did he mischaracterize the findings of the UN’s McGowan Davis “committee of experts” with regard to Israel’s internal investigations, in order to claim more credit for Israel than its efforts deserved?

I don’t think so. Let’s re-read the Op-Ed with that possibility in mind.

Goldstone starts out by declaring that if Israel had cooperated from the beginning, the Report would have been different. He doesn’t say exactly how, but by leaving us wondering, he certainly has our attention.

In the very next paragraph, which consists of one sentence, he quotes the McGowan Davis report as to the number of Israel’s internal investigations and the “considerable resources” devoted to them. He doesn’t qualify that citation by quoting McGowan Davis’ equally considerable concerns about those same investigations, though several paragraphs later he does say he shares some of them. Hence, from my reading, Goldstone is not so much mischaracterizing Israel’s performance, as noting it to make a larger point.

In the next paragraph, he pivots directly to contrasting Israel’s investigations with Hamas’ inaction. I believe this gets to the heart of why he wrote the Op-Ed, and that it’s important to consider this attention to Hamas in the context of the “accountability project” as a whole. We must remember that while Israel refused to cooperate at all with the compilation of the Goldstone Report, Hamas did cooperate, providing the Fact-Finding Mission access to both its territory and its people. But at this juncture, it is Israel that is participating in the process, however obliquely and however haltingly, and Hamas that is holding back. Hamas still rejects as fundamentally unjust the premise that it should investigate itself, much less subject any investigations to international scrutiny. Specifically, it continues to insist that as the victimized party, grossly deprived of material agency, it cannot be held responsible for civilian deaths in the course of its own self-defense. Does some of this sound familiar?

Much of the rest of the Op-Ed's assertions are couched in qualifying adverbs, conditional verbs and the future tense. One glaring exception is Goldstone's call for the Human Rights Council to "unequivocally condemn" the recent murder of an Israeli family living in the fortified West Bank settlement of Itamar. By issuing such a call, Goldstone is unquestioningly standing by the victims; illegal settlers, citizens, or stateless refugees, they are all the same to him in this regard. What is unclear is whether he sees an HRC condemnation as a step toward applying international scrutiny to investigations of this crime as well. But here, as in the rest of the Op-Ed, he doesn't recommend any juridical procedures beyond those already specified in the original Report. And though he does manage to speak on behalf of all sides, noting, for example, the need to investigate Fatah's human rights abuses in the West Bank, "especially against Hamas", his personal sympathies are not the issue. The issue for Goldstone is whether or not Israel and Hamas are living up to an identical set of obligations under international law to protect unarmed civilians, regardless of those civilians' national identify, legal status, or political party.

To summarize: Goldstone’s Op-Ed acknowledges Israel’s efforts so far and expresses his personal confidence that they will continue and improve. But even more importantly and, from my point of view, controversially, the Op-Ed reiterates Goldstone’s personal conviction, and the Report’s insistence, that Hamas abide by the same rules regarding the protection of civilians as Israel.

In his opening remarks at Stanford, Justice Goldstone said the following:

I hope to talk from the very center.

My hopes for the Report? To assist in the peace process. The fact-finding and conclusions we drew were provisional. We hoped each side would investigate.

Unfortunately, violence continues.

Yet there has been some progress. Israel has investigated, but none are held in public. Hamas has not conducted any investigations. The Palestinian Authority did set up a public investigation, which confirmed the Report’s findings, but our recommendations have not been acted on by the PA.

The process of mutual demonization must end.

As I read it, the Op-Ed represents Goldstone standing “at the very center”, as he sees it. The Report spoke truth to power (Israel). In the Op-Ed Justice Goldstone continues with the much less palatable task of calling to account the much weaker party, in the very midst of lethal conflict. He devotes the last lines of the Op-Ed to that difficult proposition:

Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.

The dilemma of applying the laws of war to the weaker party was succinctly formulated by Samera Esmeir, Professor of Rhetoric at University of California at Berkeley, two days before the Stanford debate, at a conference held at the Hastings Law School in San Francisco, entitled “Litigating Palestine: Can Courts Secure Palestinian Rights”. (Noura Erekat and Victor Kattan, the team arguing in support of the Goldstone Report at Stanford, also participated in the discussion at Hastings.)

Here is Samera Esmeir on the issue of asymmetrical warfare and humanitarian law:

The rules of war are blind to asymmetry in power and sovereignty.

Does international humanitarian law contribute to this asymmetry?

To illustrate the absurdity of the legal situation Hamas finds itself in, she wondered aloud if Hamas should be advised to apply for a grant to purchase the sophisticated technology currently necessary to wage war legally. She then concluded:

Right now Gazans have two options: to be victims who get moral support, or fighters who are war criminals [because they lack the technology to precisely target]. I want a third option.

During Esmeir’s question and answer period, a member of the audience took the microphone to declare:

As a person committed to non-violent resistance, I have never felt like a victim.

Be that as it may, Esmeir, Erekat, and Kattan, at both Hastings and Stanford, kept coming back to what Goldstone in his Op-Ed called "one of the most significant challenges facing the law of armed conflict”, that of applying the laws of war to situations in which one side has at its disposal the world's most sophisticated weapons and the other side depends on home-make rockets.

This takes us to the very frontiers of Justice Goldstone’s own central concern, the concern that I believe both motivated and informed the substance of his Op-Ed: the expansion of the practical application of humanitarian law for the protection of civilian populations. There is no reason to believe Justice Goldstone would shy away from the specifically legal work Esmeir and others believe is required if laws of war are ever to be viewed as fully legitimate, and hence embraced, by the powerful and the weak alike. He is still showing up for work. So must we.


Goldstone's controversial years on the South African bench during Apartheid

Goldstone interviewed by Michael Krasny, on Forum, March 9, 2011

The Goldstone Report: A Debate
Stanford University, April 8, 2011

Goldstone Op-Ed, Washington Post, April 1, 2011

Goldstone: An Act of Negligence, by Noura Erekat, April 4, 2011

Goldstone won't seek Gaza report nullification, by Associated Press, April 6, 2011

Rodger Cohen's distortions of the Goldstone Op-Ed, by Jeremiah Haber, April 7, 2011

Itamar killers found? April 18, 2011

"Litigating Palestine" April, 2011: Videos of conference sessions
Esmeir speaks in Panel 4, Beyond Litigation, about 1 hour 40 minutes into the video.