Retired South African judge Richard Goldstone, whose name graces the infamous “Goldstone Report” on Israeli Operation Cast Lead (December 2008-January 2009), has an op-ed in the 1 April Washington Post that opens with the following statement:
We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.
Shocked, Shocked: Hamas Doesn’t Investigate Itself
Goldstone implies he was urged to this view by the independent committee that reviewed the Goldstone Report – produced for the UN Human Rights Council (UNHRC) – for the UN. He has this to say about that:
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.”
(Full text of independent committee report here.)
How about that. Hamas, the terrorist organization with extensive ties to Iran, hasn’t conducted any investigations into its launching of rockets and mortars “purposefully and indiscriminately … at civilian targets.” Meanwhile, regarding the Goldstone Report’s allegations that Israel targeted civilians indiscriminately, Goldstone has this to say:
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. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy. (Emphasis added)
In the first sentence, Goldstone acknowledges that his report’s allegations of intentional targeting of civilians were based on a lack of evidence – not positive evidence. Another way of putting his proposition is that the investigators assumed intentionality unless positive evidence proved the converse. That’s one thing for a bull session at the local pub, but it’s entirely another for an international proceeding whose outcome is intended by the parties to result in a non-consensual referral of Israel to the International Criminal Court (ICC) (a body to which Israel is not a State Party).
Goldstone goes on to acknowledge that where internal Israeli investigations found wrongdoing, commanders were subject to punishment. Read, as they say, the whole thing.
Ex Post Facto Quarterbacking and End-Running the Rules
Objections to the methods and conclusions of the Goldstone Report have been many and varied. This website is a one-stop venue in which a number of them are captured (see especially the Procedural Flaws page). I will highlight just a couple.
One form of criticism has come from experienced military officers, the most vocal of whom is Colonel Richard Kemp, CBE, a retired infantry officer of the British army who served in Afghanistan and Bosnia. He testified against the tendentious conclusions of the Goldstone Report before the UNHCR in October 2009, starting with this statement:
The IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.
Kemp can be seen here making similar points to a BBC anchor (h/t: Solomonia). He acknowledges that in the chaos of war, any commander – British, Israeli, or any other nationality – can inflict inadvertent damage or even simply make mistakes. But as he observes in this June 2009 address to the Jerusalem Center for Public Affair, “Mistakes are not war crimes.”
That point begs the question of how the two are distinguished, as a matter of international law. The second major form of criticism applied to the Goldstone Report is its cavalier treatment of that overriding question. In the Berkeley Journal of International Law’s “Publicist” forum, Army JAG LTC Chris Jenks and South Texas College of Law Professor Geoffrey Corn basically dismantle the Goldstone Report in that regard. In a section entitled “Ex Post Facto Analysis,” the authors say:
The [Goldstone investigative] Mission claimed it was “not attempting to second-guess with hindsight the decisions of commanders.” But lacking relevant and sufficient information, the Goldstone Report does just that—it applies a retrospective approach to targeting decisions made during armed conflict.
In failing to view the events through the eyes of a “reasonable military commander” and at the time the targeting decisions were made, the Goldstone Report errs as a matter of law. More problematic for future military operations, and the military leaders that plan and execute those operations, is the risk that the Goldstone Report will set a flawed precedent which may intellectually corrupt future investigations of targeting decisions during armed conflict. Ultimately, such a flawed precedent risks producing a chilling effect on military commanders responsible for the violent execution of combat missions against belligerent opponents, thereby compromising the effectiveness of such operations as well as any investigations as to the manner by which they were conducted.
According to Jenks and Corn:
… the Goldstone report … overtly substitutes its Mission members’ post hoc judgment for those of military commanders on the ground at the time … despite lacking relevant information concerning the commander’s mission, tactical assessment, threats posed, and weapon systems and support available (or not), in reviewing one attack, the Goldstone Report “found it difficult to believe that mortars were the most accurate weapons available at the time.” Labeling the use of mortars “reckless,” the report suggests that “helicopter and fighter jets” would have been more appropriate without any information as to whether those assets were even available to the military commander on the ground.
The Jenks/Corn piece goes on to point out serious – and, from a precedential standpoint, dangerous – flaws in the jurisdictional reasoning behind the Goldstone Mission. Its implication that Israel was “unwilling” to investigate alleged war crimes by the IDF was invalid; Israel had opened dozens of investigations by the summer of 2009. Charging Israel with “unwillingness to investigate” as a trigger for international intervention was unwarranted, by any credible understanding of international law.
Equally questionable was a separate but related matter: the ICC’s handling of a declaration by the Palestinian Authority, in January 2009, that it sought (or “accepted”) ICC jurisdiction over PA territories – a move made for the purpose of involving the ICC in a war crimes investigation. As Jenks and Corn point out, ICC jurisdiction over non-States Parties (such as the PA, which is not a state, or Israel, which is not a party) can only be conferred by an ad hoc decision of the UN Security Council (UNSC). The ICC is not empowered to accept or reject “applications” from whoever wants its jurisdiction. That the ICC did not immediately, on that basis, deny the appeal and direct the PA to the UNSC, in the view of Jenks and Corn sets a very bad precedent.
The US and the Goldstone Report
The UNHCR – that body enriched by the membership of Angola, Libya, China, and Cuba, among others – approved the Goldstone Report in October 2009, although US diplomats had requested the Council to postpone its vote until 2010. The UN General Assembly then endorsed the report in November 2009, requesting the Secretary General to refer it to the UNSC and demanding that Israel and the relevant Palestinian “authorities” (presumably Hamas) respond to and demonstrate cooperation with the report (the US joined 17 other nations in voting No).
The US House of Representatives, recognizing the report’s flaws, voted the same week to condemn it. In the Senate, 30 senators signed a letter to Hillary Clinton in late September 2009 asking her to block any punitive action envisioned by the UN based on the Goldstone Report.
Congress and the president should now join the Netanyahu government in calling for the UN General Assembly to repeal its endorsement of the Goldstone Report. The report is deeply flawed, as was its premise and its process. The General Assembly vote in November 2009 was in itself an indication of that: although 114 nations voted to endorse the report, that tally fell short of the usual zeal for condemning Israel, and reflected a high number of abstentions along with the 18 No votes (scroll to the bottom at the link to see the voting details). Among those abstaining were Russia, the UK, Spain, Sweden, and quite a few other European, Latin American, and Asian delegations. Recognition is widespread that the Goldstone Report’s flaws carry menacing implications for national sovereignty and the manufacturing of “war crimes.”
The US should lead the effort to withdraw UN endorsement of the Goldstone Report, and should state clearly our intention to veto any UNSC consideration of proposals based on it. Israel has been the target of this assault on national sovereignty and the integrity of UN-chartered processes; the next assault could be mounted against any other nation. If the precedent of delegitimization through extra-legal machinations is allowed to be set, no one will be immune.