Goldstone baulked at prospect of pro-terror legacy

Richard Goldstone's extraordinary retraction of the key elements of his report against Israel came after his report was attacked for supporting terrorism

Goldstone report waving the Hamas flag
Petra Marquardt-Bigman
On 6 April 2011 12:18

It is perhaps no coincidence that less than three months after the publication of a book celebrating the “legacy” of the Goldstone Report – the book’s foreword is by Desmond Tutu, its introduction by Naomi Klein, you get the picture -- the man after whom the report is named decided it was time to distance himself from its most sensational allegations.

Writing in the Washington Post, Richard Goldstone claimed that his report “would have been a different document” if he had known at the time of its drafting what he knows now, and he specifically acknowledged that there was no basis for accusing Israel of having intentionally targeted Gaza’s civilians as a matter of policy.

But as the advertisement for the book on the Goldstone Report’s legacy highlights, it was the emphasis on such alleged “Israeli atrocities” that made the report a “political bombshell” when it was published in September 2009. Inevitably, the question now is whether Goldstone’s retraction will have a similarly explosive impact in the public domain, or whether the damage is irreparable.

For the depressing reality may be that it is premature for Israel to celebrate Goldstone’s retractions as “a major public relations coup […] comparable to the United Nations rescission of its notorious resolution equating Zionism with racism”, as Aluf Benn put it in a recent edition of Haaretz. That move made a splash all over the world, and signaled a major defeat for Israel’s enemies. But the Goldstone report is still making its passage through the United Nations; Goldstone himself has so far refused to call for its withdrawal (though there are some reports he is considering it); and, as a sign of the level of intransigence Israel may face in getting it withdrawn, the British government has said openly that it still stands by his report.

To be sure, the Israeli government is taking steps to push for an official retraction at the UN, and if they are in fact successful that would represent a significant victory. However, most Israelis would still agree with Jeffrey Goldberg’s grim observation that “it is somewhat difficult to retract a blood libel, once it has been broadcast across the world.”

It would be wrong, of course, to see the Goldstone Report as an issue that affects only Israel. It is telling that Goldstone complains in his op-ed that it has not been sufficiently recognized that “our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations.” He acknowledges criticism that “it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes”, and he admits that it might have been “unrealistic” and “mistaken” to hope for any serious efforts on the part of Hamas. Goldstone concludes by asserting that:

“…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.”

With this passage, Goldstone seems to be responding to some of the fundamental criticisms against his report. It is noteworthy that a few days before he published his op-ed, he attended a debate at Stanford University. The panel included Peter Berkowitz, who has previously written critically on “The Goldstone Report and International Law” and has argued along the following lines in a more recent piece suitably entitled the Goldstone Mess”:

“Without so stating, the [Goldstone] report sets aside, or seeks to rewrite, international humanitarian law. It effectively shifts responsibility for civilian losses away from terrorists who deliberately violate the law of armed conflict by operating in civilian areas and onto the states fighting them. The result is to reward those who, in gross violation of the laws of war, strive to obscure the distinction between civilian and military objects and, in the case of liberal democracies such as Israel and the United States, to punish those who seek to uphold it. And because rewarding behavior encourages more of it, the Goldstone Report […] will cause more terrorists to operate within densely populated urban areas.

If the report’s approach prevails, then, in the fight against transnational terrorists, liberal democracies will face a political and legal climate that all but criminalizes the exercise of their right to self-defense. In the short term, that may lead liberal democracies to increase the dangers to which they expose their own soldiers and civilians. In the long term, it risks impelling them to abandon international humanitarian law as hopelessly impractical, thereby undermining their own soldiers’ sense of justice and honor and increasing the peril to the other sides’ civilians.”

While Goldstone claims that his report has led to some positive developments in terms of “lessons learned”, it is already clear that groups like Lebanon’s Hezbollah are learning exactly the “lessons” anticipated by Berkowitz – namely that terrorists stand to benefit by operating from densely populated areas: according to recently released Israeli intelligence, Hezbollah has transformed villages and towns in Southern Lebanon into formidable military staging areas fortified with hundreds of bunkers, military installations and storage facilities for weapons and rockets.

Goldstone may be passionate about ensuring that the laws of armed conflict provide protection for civilians, but the report that bears his name encourages organizations like Hamas and Hezbollah to use civilians in order to provide protection for their military arsenals.

When people start writing books praising you for that, it is hardly surprising that you begin to think hard about whether you really want your legacy to be that you established one of the most dangerous, pro-terror, legal precedents of all time. That, one suspects, is why Richard Goldstone finally saw sense and sought, at least partially, to put the record straight.

Petra Marquardt-Bigman is an Israel-based freelance writer and researcher with a Ph.D. in contemporary history. She blogs at the Jerusalem Post

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