My upcoming Australian Jewish News column:
In defense of Judge Goldstone, sort of
By Haviv Rettig Gur
Judge Richard Goldstone, the namesake of the report that convinced much of the world that Israel had indeed committed war crimes in Gaza, is getting a bad rap.
Not about the Goldstone Report, to be sure. That document, when you actually take the trouble to read it, is a collection of hearsay about Israeli brutality that fails to challenge the Palestinian witnesses but somehow still manages to conclude, unequivocally, that Israel violated the most sacred laws of human morality.
But, you know, that was last year. Water under the bridge.
Now, Judge Goldstone is facing a barrage of criticism in the Jewish world for his role as an enforcer of the law under the apartheid regime in South Africa.
Some details of his apartheid-era judicial rulings came to light last week in an expose published by Israel’s largest daily, Yediot Ahronot. The article blasted Goldstone for sentencing 28 blacks to death and enforcing – allegedly happily – the country’s racist laws, including jailing two young black men for possessing a video tape of a speech by an associate of Nelson Mandela and acquitting four police officers who had harassed a white woman believed to be sleeping with a non-white man.
For his part, Goldstone noted that he only sentenced two men to death, each time for a brutal murder, as was mandatory by South African law at the time, while the remaining 26 were failed appeals during his tenure on the Transvaal supreme court.
Reactions to the news came fast and furious. Jeffrey Goldberg commented that “this new report suggests not only that Goldstone is at best intermittently principled, but that he knew his old hanging-judge record would one day catch up with him.”
Alan Dershowitz declared that Goldstone’s defense that his death penalty convictions were in keeping with the law was not unlike that of the sadistic Auschwitz doctor Josef Mengele.
Elan Steinberg, vice president of the American Gathering of Holocaust Survivors and their Descendants, continued the Holocaust theme by calling Goldstone’s response “sadly reminiscent of the long discredited so-called ‘Nuremberg defense’ – ‘l was only obeying orders.’”
On the facts, Goldstone probably has a stronger case than his detractors. His acquittal of the policemen, for example, was explicitly made because of errors in the legal proceedings against them. And even at his most egregious Goldstone’s death sentences are not different from the norm of some of the world’s strongest democracies even today. Japan, for instance, or the United States.
As South Africa’s former chief justice Arthur Chaskalson told me last week, Goldstone “was regarded by everyone who knew him as a liberal judge.”
It was Goldstone, Chaskalson noted, who in the 1980s declawed the infamous Group Areas Act by giving the courts discretion over the forced evictions of people living in the wrong racial districts.
So which is it? Is Goldstone the guilt-ridden former enforcer of legislated racism or a hero who once held the line against the worst offenses of a bad regime?
My answer: neither. He’s something much simpler. He’s a joiner.
Once, at the start of his career, Goldstone had to choose how he would behave in an immoral system. He chose to join it, and then by most accounts worked to correct it from within.
At the end of his career, he had to make that choice again. Once again, he chose to join. This time it was the UN Human Rights Council, which since its inception four years ago has devoted 82% of its censures to Israel alone and this year went to the trouble of praising Sri Lanka for defeating the Tamil Tigers in a war that cost 20,000 civilian lives.
In order for law to be the impartial arbiter of disputes, it needs certain fundamental institutions: the unbiased judge, an independent judiciary, a clear hierarchy of appeal, an elected legislature that assures that law emanates from the society to which it is being applied.
But the UN has none of these, because it is not in any sense a legal body. It is a political one that operates by mob rule.
Yet the effect of Goldstone’s report has been to attach the prestige of “law” to a non-legal public lashing of Israel commissioned by and for a political body already irredeemably prejudiced against Israel.
Goldstone himself insists that his report is not admissible as evidence in a court of law. It was merely “fact-finding,” he says. But who cares about the legal niceties when Goldstone himself seems to violate them in his report’s spectacularly adamant conclusions about Israel’s heinous violations of human rights law?
And so the question remains. Is he naïve? Or, as with apartheid, is he happily wielding a racist stick in the service of a higher cause?
Or maybe he’s still, as in his youth, simply a joiner.
