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The Goldstone Report and the Goldstone Retreat: Truths Told by Law and Reviled by Geopolitics

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Is There a Court for Gaza?

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Abstract

The Goldstone Report gained its prominence because of its UN auspices and the high credibility of Richard Goldstone as the Chair of the Fact Finding Mission appointed by the Human Rights Council. Other reputable inquiries (John Dugard’s parallel mission set up by the Arab League, Amnesty International, Human Rights Watch), aside from a host of journalistic and credible eyewitness accounts, converged on the overall criminality under international law of Operation Cast Lead. The video reports, together with the 100:1 casualty ratio, reinforced this impression, which has since been further validated by the testimony of IDF soldiers, diaries of persons living in Gaza at the time, by the Norwegian film Tears of Gaza, as well as by informal reports by UN staff stationed at the time of the attacks in Gaza. What the Goldstone Report did was to provide greater detail, especially in relation to several incidents, a set of recommendations for further action, and significantly, encouragement for accountability by way of the less conventional means of Universal Jurisdiction (application of norms of international criminal law by national courts against persons charged with violations regardless of where perpetrated) and civil society action.

Richard Falk is Albert G. Milbank Professor of International Law Emeritus, Princeton University, and currently research professor of global studies at the University of California, Santa Barbara. Since 2008, he has been the Special Rapporteur on the Occupied Palestinian Territories for the UN Human Rights Council.

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Notes

  1. 1.

    On the establishment of the Fact Finding Mission on the Gaza conflict, see J. Barnette, Chap. 5 infra.

  2. 2.

    This is substantiated by the casualty figures, which suggest somewhere between 1,387 and 1,444 Palestinians were killed, mainly civilians, and more than 300 children, while three Israeli civilians died as a result of rocket and mortar fire from Gaza, and this could not clearly be attributable to Hamas due to the role of independent militias not under its control.

  3. 3.

    UN Human Rights Council Resolution S-9/1 (12 January 2009).

  4. 4.

    Arendt 1964.

  5. 5.

    The motivations for this blockade have been variously described as: punishment of the Gazan population for its show of support for Hamas in the January 2006 elections; a response to the Hamas forcible takeover of Gazan governance in July 2007; a strategy of undermining Hamas by making the life of the civilian population both unbearable and highly unfavorable as compared to life in the West Bank under the Palestinian Authority; a bargaining tactic to secure the return of the single captured Israeli soldier, Gilad Shalit. Because nothing is acknowledged, such explanations are obviously speculative. What is not speculative, and yet significant, is that the blockade has little if anything to do with Israeli concerns about the Qassam rockets fired from Gaza in the direction of Israeli towns. The rocket fire virtually disappeared during a ceasefire, and Hamas frequently offered to extend the cease-fire even for a period of ten years, an offer ignored by Israel.

  6. 6.

    See column by Hijab 2009.

  7. 7.

    A summary of a comprehensive report prepared by UN Board of Inquiry details damage to UN facilities, and concludes that Israel deliberately targeted such facilities despite knowing their identity and that they were being used as a shelter for Gazan civilians. The full report has been treated as an internal document and never made public, although a rather extensive Executive Summary is available that includes a recommendation that compensation be sought from Israel for damage done. See “Transcript of Press Conference by Secretary-General Ban Ki-moon, UN Headquarters” (SG/SM/12224) (5 May 2009). For commentary emphasizing Israel’s reaction, see Rabinovich 2009.

  8. 8.

    It was at Justice Goldstone’s insistence that the Human Rights Council’s original mandate be expanded to include inquiry into the conduct of Hamas. For Goldstone’s own reflections on his involvement in this inquiry, see Goldstone 2009; see also for his underlying orientation, Goldstone 2000.

  9. 9.

    Shimon Peres even mounted an entirely inappropriate and ill-fitting personal attack on Goldstone calling him “a small man, devoid of any sense of justice, a technocrat with no real understanding of jurisprudence” who led “a one-sided mission to hurt Israel.” As quoted in Sadeh 2009; see also Zarchin 2009.

  10. 10.

    Netanyahu speech of 24 September 2009; compare President George W. Bush 2001.

  11. 11.

    Haaretz 2009.

  12. 12.

    For exploration of and support for universal jurisdiction, see various contributions to Macedo 2004.

  13. 13.

    See Legal Consequences of the Construction of a Wall on Occupied Palestinian Territory, I.C.J. Advisory Opinion (9 July 2004); the fact that it was an advisory opinion should not make it less authoritative, especially given the acceptance of the conclusions by a formal resolution passed in the General Assembly.

  14. 14.

    See reports of Amnesty International, Human Rights Watch, and Breaking the Silence, the latter collecting the testimony of thirty IDF soldiers.

  15. 15.

    An internationally respected Israeli activist and former member of the Knesset, Uri Avnery, expresses this facet: “People around the world know that it is as honest a report as could be expected after our government’s decision to boycott the investigation.” Uri Avnery, 2009. Avnery earlier had written, “So why did the Israeli government boycott the commission? The real answer is quite simple: they knew full well that the commission, any commission, would have to reach the conclusions it did reach.”

  16. 16.

    “Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-finding Mission on the Gaza Conflict,” (Goldstone Report), para 62, available at http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm. The Goldstone Report also notes that these same elements were present in the Israeli tactics during the Lebanon war of 2006, almost equally a one-sided war in terms of damage and casualties. For a range of critical assessments, see Hovsepian 2008; on the Dahiya doctrine, see discussion in Barnette 2010, pp. 15–20. The essence of the Dahiya doctrine was expressed by Maj. Gen. Gadi Eisenkot, Israeli Northern Command chief, in October 2008: “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on …. We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases …. This is not a recommendation. This is a plan. And it has been approved.” Ynet 2008, also see Siboni 2008.

  17. 17.

    I have argued elsewhere, without a focus on the Gaza attacks, that such one sided war resembles “torture” more than “war,” wondering why the former disturbs public sensibilities so much more than the human impacts of war. See Falk 2011, pp. 119–133.

  18. 18.

    For insightful discussion of “disproportion” in the setting of air strikes by Israel, see Farer 2009.

  19. 19.

    Goldstone Report, Executive Summary, para 127; reprinted in this Volume, infra Document 2 in Part II.

  20. 20.

    Goldstone Report, para 1772, Recommendations section.

  21. 21.

    See Black and Cobain 2009.

  22. 22.

    Goldstone Report, para 122.

  23. 23.

    Goldstone Report, paras 1766 and 1767.

  24. 24.

    See BBC report of 11 Palestinian human rights organizations directing an identical letter to Palestinian Authority president Mahmoud Abbas and Hamas prime minister Ismail Haniya urging the initiation of investigations of allegations made against Hamas and Palestinian forces during the Israeli “military offensive” in Gaza that took place between 27 December 2008 and 18 January 2009. See “Palestinians Urged on Gaza Crimes”, BBC 2010.

  25. 25.

    See Izenberg 2009; in the same article, there was speculation as to whether the International Criminal Court might investigate a complaint filed by the Palestinian Authority.

  26. 26.

    Goldstone Report, para 1769, point 4.

  27. 27.

    See especially, the discussion carried on in several issues of the New York Review of Books, anchored in criticism by Michael Walzer and Avishai Margalit of an influential article by two Israelis, Asa Kasher (a retired ethics professor who advises the IDF) and Amos Yadlin (a general, currently head of Israeli military intelligence) who are believed to have altered IDF thinking and policy by their article, “Assassination and Preventive Killing,” SAIS Review 25, no. 1 2005 pp. 41–57; Margalit and Walzer change the focus from targeted assassination to the rules of engagement in the Gaza attacks, concentrating on the central question posed by Kasher and Yadlin 2009: “What priority should be given to the duty to minimize casualties among combatants of the state when they are engaged in combat …  against terror?” Quoted in Margalit and Walzer 2009; for exchange of views, see Margalit and Walzer 2009.

  28. 28.

    Goldstone Report, para 1769.

  29. 29.

    Although at an official level the politics of deflection seems largely tactical, there is some reason to believe that many Israelis believe that Israel is held to higher standards than other nations or that Israel is genuinely in danger of being engulfed by a new surge of global anti-Semitism. See the perceptive article on the tensions between public anxieties and governmental policies, Segev 2010, pp. 47–48.

  30. 30.

    Among the most extreme statements along these lines was that made by Anne Bayevsky, a researcher at the Hudson Institute as reported by Lazaroff 2009. On numerous occasions, Justice Goldstone has defended the right, even insisting on the duty, of Jews to speak out against injustice as well as violations of human rights and of international law.

  31. 31.

    “Calling on the President and the Secretary of State to Oppose Unequivocally Any Endorsement or Further Consideration of the ‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’ in Multilateral Fora,” HR 867, 111th Cong., 1st sess., 23 October 2009. The resolution refers to the Goldstone Report in its first operative paragraph as “irredeemably biased and unworthy of further consideration or legitimacy.” The long preamble of “whereas” paragraphs in the resolution contained much innuendo and many inaccuracies, which Goldstone attempted to refute point by point in a careful letter to the drafters of the resolution that was completely ignored. See Ackerman 2009. For a general assessment, see Mozgovaya and Ravid 2009. The vituperative language of the resolution in relation to the sobriety and professionalism of the Goldstone Report confirms the impression of the extreme responsiveness of Congress to the Israel lobby, and casts further doubt on the capacity of the US government to play a constructive role as intermediary in the conflict.

  32. 32.

    The only technical objection with any merit at all is the contention that one of the four members of the mission was already on the public record in the form of a jointly signed published letter to the editor of a British newspaper, and should have been disqualified. For text of the letter, see “Israel’s Bombardment of Gaza Is Not Selfdefense—It’s a War Crime” Sunday Times 2009, see also Kattan 2009b. Goldstone made the argument that, if the mission had the task of reaching binding judgments adverse to Israel, then Chinkin would have been disqualified. In fact, Chinkin has a deserved reputation of professional integrity, and was particularly qualified to be a member of such a mission by virtue of her familiarity with Israel–Palestine conflict and her expert knowledge of international law.

  33. 33.

    Goldstone Report, Executive Summary, para 105.

  34. 34.

    On 1 October 2009, the Palestine Liberation Organization announced that it supported a move by the Palestinian Authority, under pressure from Israel and the United States, to defer the vote on a resolution calling for endorsement and implementation until March 2010, suggesting a postponement for several months of any consideration given to the report. Revealingly, there was such a populist backlash that the Palestinian Authority reversed course and led the effort to have the Goldstone Report endorsed and implemented. MacFarquar 2009. For helpful discussion, see Barnette 2010, pp. 48–53. It has been subsequently reported in an Israeli newspaper that the Palestinian president Mahmoud Abbas requested the postponement of any vote in the Human Rights Council on the Goldstone Report only after he was threatened by Yuval Diskin, the head of Shin Bet, with “a second Gaza” in the West Bank along with some other threats. See Eldar 2010.

  35. 35.

    There is a large literature on this issue. The two sides are clearly articulated by Yoo 2006; Paust 2007; for a sophisticated presentation of a case for departing from strict legalism in addressing terrorist threats, see Wittes 2008.

  36. 36.

    See an insightful discussion of this delicate issue in the column by Nadia Hijab, Hijab 2009. The word genocide possesses a strong emotive resonance, especially for Israelis, hearkening back to its initial usage by Rafael Lemkin in reaction to the Holocaust. I draw a distinction between moral, political, and legal conceptualizations of the word “genocide.” For the most authoritative legal treatment, see judgment of the International Court of Justice in the Bosnian case: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v. Serbia and Montenegro) (ICJ Judgment, 11 July 1996).

  37. 37.

    For text, see White House website, 10 December 2009. The Nobel speech is notable for its incoherence, relying on a vague invocation of justice to uphold counterterrorist uses of force while reaffirming the US dedication to the conduct rules contained in the Geneva Conventions and the law of war. From this perspective, it is hard to grasp the logic, aside from submitting to Israeli pressures, relied on to condemn the Goldstone Report or to back Israel in relation to Operation Cast Lead.

  38. 38.

    For a critical assessment of the Israeli claim to be acting defensively, see Kattan 2009b, pp. 95–118.

  39. 39.

    For his views on this rarely analyzed point, see Farer 2009; see also Kattan 2009b.

  40. 40.

    For a classic argument against pushing international law beyond these geopolitical realities, see Bull 1966, pp. 51–73.

  41. 41.

    In other settings, accountability for the losing side or vulnerable individuals is consistent with geopolitical realities, even an instrument of the powerful and victorious. From the Nuremberg and Tokyo point of departure, this problem of double standards has haunted the quest for extending criminal responsibility to those who act on behalf of the state. The ebb and flow of support for universal jurisdiction is one theater of this encounter, as was the somewhat unexpected establishment in 2002 of the International Criminal Court. These latter developments are gestures in the direction of extending the rule of law to the domain of accountability, but the pushback on efforts to pursue well-documented allegations against Donald Rumsfeld, Henry Kissinger, and Israeli officials is indicative of the continued robustness of geopolitics. The detention of Augusto Pinochet, the prosecutions of Slobodan Milosevic and Saddam Hussein, and the ICC indictment of President Bashir of the Sudan are not exceptions to the reach of geopolitics, but further illustrations of its continued sway.

  42. 42.

    Goldstone Report, paras 1772 and 1774.

  43. 43.

    See Barkan 2005, pp. 441 ff; see also conclusion of Victor Kattan’s excellent historical presentation of the conflict in Kattan 2009a, especially p. 261.

  44. 44.

    For a focus on this aspect of the relevance of international law, see Falk 2005, pp. 331–348.

  45. 45.

    The Report implicitly regards the potential criminality of Israel and Hamas as more or less symmetrical. I reject this view. Whether measured in terms of the harm caused or the responsibility for the one-sided violence of the Gaza attacks, Israeli political and military leaders bear the brunt of responsibility. This is consistent with the underlying view that both sides in the encounter should have their activities assessed from the perspective of international criminal law. But it is a mistake to treat the two sides as equally culpable in the Gaza context. It is a still greater mistake to claim, as have both Israeli and US officials, that a deficiency of the Goldstone Report is its tendency to treat a democratic government such as Israel as being subject to the same restraints as are applicable to an alleged terrorist actor. When measured by the death of innocent civilians or by reference to the Dahiya doctrine of deliberate disproportion, the magnitude of responsibility on the side of Israel seems far greater than that of Hamas.

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  1. University of California, Santa Barbara, CA, USA

    Richard Falk

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  1. , Law Faculty, University of Milan, Via Festa del Perdono 7, Milan, 20122, Italy

    Chantal Meloni

  2. , International Section, Lelio Basso Foundation, Via Della Dogana Vecchia 5, Roma, 00186, Italy

    Gianni Tognoni

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Falk, R. (2011). The Goldstone Report and the Goldstone Retreat: Truths Told by Law and Reviled by Geopolitics. In: Meloni, C., Tognoni, G. (eds) Is There a Court for Gaza?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-820-0_3

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