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Goldstone op-ed misrepresented but also misleading

By Jerry Haber

It is the unfortunate fate of Judge Richard Goldstone to be condemned and praised for what he doesn’t write. The responses to his op-ed in Washington Post from the Israel advocates are laughable. Even a superficial reading of the op-ed shows that he has not retracted a single comma in the Goldstone Report, nor does he express any regret for having written the report the way it was written. He simply says that had he known then what he knows now, the report would have been different.

In fact, he has been saying for over a year that had Israel cooperated with the Mission instead of boycotting it, the report would have looked different. In the op-ed he gives good marks to some of the IDF investigations, though he does not say that he finds the investigation entirely adequate (more on that below.) Some cases of killing civilians which looked prima facie intentional have now been explained to his satisfaction. Yet he refers approvingly to the UN final report which does not find that investigation adequate. He says that the IDF has investigated better than has Hamas, and gives good marks to the IDF and PA (but failing marks to Hamas) for implementing new policies. Although he doesn’t say it – perhaps he is modest — the IDF investigations would probably not have occurred without the Goldstone Report.

For a careful reading of the WaPo op-ed, see this piece of Yaniv Reich here. I thank Yaniv for saving me the time, and I thank Hashem for commanding us Jews to observe the Sabbath. Had I read Judge Goldstone’s op-ed when it was posted, I would have spent hours writing on it.

Reich refers to the tone and the timing of the WaPo op-ed. The tone of the original report seemed to me to be an angry one. Israel’s decision not to cooperate with the Goldstone mission cost it in two ways: first, its side of the story was not heard, and, second, its refusal to deal civilly with the mission had an impact on the tone of the final report. It certainly had an impact on the tone of some of the interviews that Judge Goldstone gave. The nasty blowback that Judge Goldstone received also may have affected some of the tone, not of the report, but of some of his statements; he is human.

But in speaking before various audiences the tone has always been a bit different. There was criticism of Israel, but there was always the emphasis that the findings were not judiciary and that the report called for investigations. Judge Goldstone constantly affirmed his fundamental support of Israel, and he seems to have found it difficult to understand why the positive aspects of the report (e.g., the criticism of Hamas) were being neglected

What is puzzling, then, is why Judge Goldstone has decided to write an op-ed for the Washington Post now that may give the impression that Israel has discharged its obligations with its ongoing, private, IDF investigations. As Reich puts it:

Goldstone’s latest op-ed…does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way. In fact, his findings under severe constraints have held up remarkably well with time. But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong. Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel. This is nothing more than a bone to Israel’s apologists, which is deeply misleading for all the reasons discussed here.

Reich concludes:

I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.

I cannot agree with Reich here. I would agree with him had Judge Goldstone explicitly back-tracked. I wouldagree with him had he said that the IDF has discharged its duty. I would agree had Reich given convincing proof of “intentionality,” i.e. that Goldstone intentionally mislead his readers.

But I do think that the op-ed raises questions that could easily be laid to rest were Judge Goldstone to make explicit his views on whether Israel has discharged its obligation. In the original op-ed, he wrote.

Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree.

Is a “significant degree” a “sufficient degree”? According to McGowan Davis, no. According to Judge Goldstone in the Bill Moyers interview, an internal IDF investigation would not be sufficient:

BILL MOYERS: But just this week, the Israeli defense minister said, we don’t want any investigations. He says, “There’s no need for a committee of inquiry. The Israeli military knows how to examine itself better than anyone else.” And he blocked a meeting this week that was going to discuss whether or not Israel should launch an investigation.

RICHARD GOLDSTONE: Well the question is whether he’s going to succeed. You know, Ariel Sharon, when he was defense minister, did exactly the same blocking, unsuccessfully, in respect of Sabra and Shatila, and a very appropriate independent investigation was set up under judges and the then attorney general. And of course, they found Sharon guilty, and forced his dismissal as defense minister. So there’s precedent both for the minister blocking it, and for his losing, and I hope that will happen here.

Well, it did not happen here. And it is surprising, and puzzling, that Judge Goldstone did not repeat his call for an independent inquiry in his op-ed. But until he explicitly says that there is no further need for one, then the statement above should represent his final word.

Jeremiah (Jerry) Haber is the nom de plume of an orthodox Jewish studies and philosophy professor, who divides his time between Israel and the US. This article was published on Jerry’s blog, The Magnes Zionist. It is reposted here with the author’s permission.

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    1. I can empathize with your arguments. As I started writing that essay, I found myself more in the position you are arguing for. But two things changed my mind and provide, in my opinion, evidence of Goldstone’s intentionality, which you felt was lacking.

      The first is, for me, the more important one. Goldstone’s op-ed talks explicitly about being frustrated with Israel’s overly lengthy procedures, but refers with approval to Israel’s investigations. Israel has complied with the report’s recommendations “to a significant degree”, he says. His professional opinion on such matters is certainly important, and will no doubt be better informed than mine. But I have poured over the McGowan Davis report and I see nothing that suggests such approval in the very document he cites in defense of this claim. This strikes me as intentionally misleading in precisely the manner you felt was absent.

      The al-Samouni case makes this particularly clear. Goldstone chooses this example as noteworthy and writes in an approving manner: “an Israeli officer is under investigation for having ordered the attack.” Yet the McGowan Davis report says nothing of the sort. Their conclusions were: “The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni.” They added that “As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial.” These highly contradictory statements seem to provide, in my my view, evidence of Goldstone’s ‘intentionality’.

      The second, smaller issue is his gratuitous mention of the Itamar murders. His comments on this are nothing short of bizarre. After suggesting it might have been a mistake to expect Hamas to investigate war crimes, he says “so too” should the Human Rights Council condemn the Itamar murders. Yet, as a politically aware human being if not as a judge, he should know as well as anyone that there is currently no public evidence the crime was associated with Hamas or even tied in any way to Palestinian nationalism. Maybe one day that evidence emerges (we might not want to hold our breath), but in the meantime his comment is a manipulative and awkward non-sequitur, which, in my reading, does not come across as written in good faith.

      These two things together caused me to interpret Goldstone’s op-ed in a less charitable manner, even though he didn’t revise any of the core conclusions of the original report.

      It wasn’t easy for me to arrive at this conclusion, which is why I wanted to share my rationale with you. It’s an interesting and important conversation to have.

      Reply to Comment
    2. Our agreement far outweighs our disagreement. And thank you for your post, which in many ways took the words out of my mouth. If my reading was more charitable than yours, I had personal reasons. I really have no argument with you on substance.

      Reply to Comment
    3. max

      Jerry, you have valid observations when questioning Goldstone’s motives for his retraction (besides some – in my opinion – ridiculous ones).
      But what have you found in his original report to – as rigorously – substantiate the very claim of Israel intentionally targeting civilians? As he writes, he simply didn’t have Israel’s view (a fact derided by many) and therefore had to conclude so…

      Reply to Comment
    4. Draper

      Jerry and Yaniv,

      1. Do you guys now believe Israel intentionally targeted civilians as a matter of policy?

      2. Why do you think Goldstone pretended that Hamas and other Palestinian military factions in Gaza did not use deliberately and cynically use Palestinians as human shields? I ask b/c pretending they didn’t allows them to repeat the same strategy in the next battle vs. Israel. If Goldstone won’t speak up for innocent Palestinians being used as human shields, who will? Don’t you guys care about Palestinians who will be used once again by Hamas – thanks to Goldstone – as human shields in the OCL 2?

      Thanks in advance.

      Reply to Comment
    5. Sorry, Draper, I just read your comments. Speaking for myself:

      1. As far as I know, no conclusive evidence has been produced that there was a policy of targeting civilians. But as I wrote months ago, that simply may not be possible to determine, even with a public board of inquiry. It is a question for historians to debate years from now.

      2. Your second question is of the “When-did-you-stop-beating-your-wife” variety. Goldstone didn’t pretend; there was no evidence that Hamas used Palestinians as human shields in the Gaza Op; the only people doing that cynically and deliberately were members of the IDF.

      The Hamas uman-shields is an Israeli libel that it uses in order to justify its war crimes. When a man is bombed in his house with his family, that is a terrorist operation — whether Hamas or the Irgun or the IDF do it.

      Reply to Comment
    6. Joe Blogs

      Israel’s intentional targeting of civilians was defined years ago in the “Dahiya doctrine” (http://en.wikipedia.org/wiki/Dahiya_doctrine), which: “… is an Israeli doctrine of military strategy pertaining to asymmetric warfare in an urban setting, in in which the army deliberately targets civilian infrastructure, as a means of inducing suffering for the civilian population, thereby establishing deterrence. prescribes the indiscriminate and total annihilation of a civillian area from which any hostile actions were taken”.

      Given that the Hamas fighters fired on the Israelis from different parts of Gaza, the Israeli were justified, under this doctrine, in levelling these parts with massive fire-power.

      I cannot understand how this doctrine, which was applied in Lebanon on several occasions, would fail in proving the intention of Israel to harm civilians. I cannot see how Goldstone would cut them any slack on it, unless someone “got” to him somehow.

      Reply to Comment