The State of the Jews

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.

Ultimately,the laws of war are an Israeli strategic asset.

That’s my take-away from a beautiful and heartbreaking description of war’s moral complexity published yesterday in the Wall Street Journal. Well worth the read:

Five years ago, a particularly gruesome image made its way to our television screens from the war in Iraq. Four U.S. civilian contractors working in Fallujah were ambushed and killed by al Qaeda. Their bodies were burned, then dragged through the streets. Two of the charred bodies were hung from the Euphrates Bridge and left dangling.

This barbaric act left an impression that our military did not forget: In a special operation earlier this year, Navy SEALs captured the mastermind of that attack, Ahmed Hashim Abed. But after he was taken into custody in September, Abed claimed he was punched by his captors. He showed a fat lip to prove it. Three of the SEALS are now awaiting a courts-martial on charges ranging from assault to dereliction of duty and making false statements.

…

Rules of war are important. They are something to strive for as they separate us from our distant ancestors. But when only one side follows these rules, they no longer elevate us. They create a very unlevel field and more than a little frustration. It is equally bizarre for any of us to judge someone’s behavior in war by the rules we follow in our very peaceful universe. We sit in homes that are air-conditioned in the summer and warmed in the winter. We have more than enough food in our bellies and we get enough sleep. The stress in our lives won’t ever match the stress of battle. Can we honestly begin to decide if a soldier acted in compliance with rules that work perfectly well on Main Street but not, say, in Malmedy or Fallujah?

The question is important and well-portrayed, but I don’t think it’s entirely relevant to Israel’s situation. For one thing, the IDF has succeeded in repeatedly defeating its nonconventional enemies without great civilian casualties on either side. (30,000 of some of the best-trained infantrymen on Earth were fighting in densely-populated Gaza for a whole month, and even Hamas says that fully a third of the Palestinian dead were its fighters, who were operating at the time from within populated neighborhoods. If civilians were the target, as Goldstone and Hamas claim, then the IDF is rather frighteningly incompetent.)

But there’s another reason to obey the laws of war, besides the simple demonstration that you can still win while obeying them: for Israel’s adversaries, civilian dead are a weapon of great strategic significance. In fact, Hamas has no other strategic lever over Israel than forcing it into killing Palestinian civilians by targeting Israel’s own civilians. Neither act is tolerable for Israel politically and internationally, so creating this catch-22 – utterly ignored by Goldstone, incidentally – is the essence of Hamas’ strategy.

You can only de-incentivize Hamas’ particularly vicious brand of warfare by exacting a price for aggression without “giving” them Israeli or Palestinian civilian deaths.

With this thinking, a scrupulous adherence to the laws of war is not just morally important, but strategically advantageous.

Maybe that’s why the IDF, for all the criticism it faces abroad, has actually done better in avoiding civilian deaths than similar armies fighting in places like Helmand or Fallujah.

Another day, another survey, this time demonstrating the obvious: Israelis have something against the Goldstone Report.

Sixty-one percent of Jewish-Israeli respondents—compared to only 22% of the Arabs—answered that they know what the report’s main conclusion is. Among the Jewish interviewees who responded that they are aware of the report’s main conclusion, there was almost total unanimity (93.5%), that the report was biased against the IDF.

So do I:

Does it matter if his tribunal was not, strictly speaking, “judicial” if everyone everywhere believes that its judgments have judicial status? Does it matter that in acting upon ostensibly “objective” criteria for deciding the “lawfulness” of Israeli and Palestinian actions during Cast Lead, Judge Goldstone created a text that would only ever serve as ammunition against Israel?

Do judges have a responsibility to take into account the ramifications of their decisions and actions?

Goldstone is distraught over the UNHRC’s utterly biased final decision. Yet he himself could not take on the original HRC mandate for his commission until, as he says, it was changed from the original biased resolution.

“Are you in the habit, Judge Goldstone, of accepting commissions whose political agenda you must first expunge so that the mandate meets the most elementary standard of fairness?”

Amnon Rubinstein is one of Israel’s greatest legal minds, a former MK, minister of education, Israel Prize laureate, law school dean, bestselling novelist and, most importantly, the author of the most important parts of Israel’s nascent constitution – the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.

He is also in many respects my intellectual grandfather, the teacher of my teachers.

So it is with pride that I share this: a translation of Amnon’s piece in the September 23 edition of the Israeli business daily Globes that encapsulates beautifully the near-unanimous Israeli perspective on Goldstone.

(Maybe, with The Economist, Ha’aretz’s Ari Shavit and Amir Oren, Irwin Cotler and even David Landau all fundamentally opposed to Goldstone, maybe there really is a problem with Goldstone…)

Goldstone’s Unconscious Humor
By Amnon Rubinstein

It is not true that the Goldstone report is exclusively anti-Israeli. After having established that Israel is guilty of crimes against international law and (possibly) humanity, after advocating punishing it with an arsenal of all conceivable sanctions, it also chides the Palestinians for some inappropriate measures taken by them.
First, there is Hamas. Goldstone does not let them go Scot free. Thus he blames the Hamas for a grievous offense:

“The mission remains unconvinced that any genuine and effective initiatives have been taken by the (Gaza) authorities to address the serious issues of violation of international human rights in the conduct of armed activities by militant groups in the Gaza strip.”

This refers to the shelling of southern Israel from Gaza in the eight years preceding Operation Cast Lead. But what does Goldstone have in mind when he chides the Hamas for not taking genuine and effective initiative against the militants who do not adhere to international human rights law? Does he refer to their failure to petition the local High Court of Justice to issue a writ of mandamus against the militants? Or does he have in mind the fact that the Hamas Solicitor General has failed to issue an indictment against the offending militants?

Judge Goldstone rebukes the Hamas again for their treatment of Fatah ‘affiliates.’ Goldstone finds that “such actions” – i.e. killing the Fatah detainees – “constitute serious violations of Human Rights or the Palestinian Basic Law.” Again, one may ask: what went wrong here? Did the Hamas Supreme Court of Justice ignore the Palestinian Basic Law? Where was the Hamas attorney-general? Goldstone is not content with slapping Hamas’ wrist, he also reprimands the Palestinian authority:

“The Palestinian Authority continues to discharge a large number of civil and military service employees, or suspend their salaries, under the pretext of “non-adherence to the legitimate authority” or “non-obtainment of security approval” on their appointments, which has become a pre-requirement for enrollment in public service”. In effect, this measure means the exclusion of Hamas supporters or affiliates from public sector appointment…. The Mission is of the view that the reported measures are inconsistent with the Palestinian Authority’s obligations deriving from the Universal Declaration on Human Rights and the Palestinian Basic Law.”

In other words, the PA is obliged, by international humanitarian law, to employ those who want to unseat them.

This surely is an uncontrollable outburst of surreal humor but it pales in comparison with another outburst.
Goldstone, after quoting heavily from Ha’aretz, Israeli jurists, B’tzelem and other Israeli human rights NGO’s, states:

“…the Mission received allegations that sources of criticism of actions by Israel during and following the military operations of December 2008-January 2009 from inside Israel were subjected to attempted or actual repression, and that the rights of freedom of association and expression for individuals and groups had been violated. In this regard, concerns were also raised about the denial of access to the media and to human rights monitors prior, during and after the military operations in Gaza.”

The humor stems from the fact that the evidence of this repression was given by Israelis – including those who addressed Goldstone’s committee. Israeli NGO’s who complained about this repression of dissent appear almost daily – loud and clear – in Israeli newspapers and state-owned radio and television.

For some obscure reason, there is no parallel finding about suppression of dissent by Hamas. Indeed, the report should have a sub-heading – Eyeless in Gaza – lifted from John Milton and Aldous Huxley.

* * *

The humor stops where the report alleges actions of wanton brutality and killings by Israeli soldiers; even if only partially true, these cases should be a reason for sleepless nights for every law-abiding, humane Israeli. The IDF authorities state that they have investigated these allegations and, except for one case of looting, found no evidence of such war crimes. However, it is the opinion of this author that due to the severity of the allegations and the number of Palestinian civilians killed in the operation, Israel should re-investigate these thirty-plus cases and that this reinvestigation should be conducted by an independent body headed by an acting or retired judge of the Supreme Court. Such a body should be empowered to see army documents and make recommendations. This step is vital not because of Goldstone’s ludicrous report, replete with its instances of unconscious humor, but because we, Israelis, must be doubly sure that no crimes were perpetrated by our soldiers. We should not be “eyeless in Gaza.”

You heard it here first; now you don’t have to wait five years for the tell-all interview: Richard Goldstone wants to end war, and he wants to do it with lawyers.

This is a noble goal, and I think one shared by some of the noblest Jews who ever lived.

Here’s the problem, as pointed out repeatedly in the wake of Goldstone’s report: It’s only being done to Israel.

An Amnesty International blog complained yesterday of Israel’s “nasty habit of playing the man not the ball when it comes to fending off critics.” Why are we shooting the messenger rather than “engaging with the detailed findings” of the message?

But there’s the rub. There’s a reason the legal profession is obsessed with due process – because the law is due process. Law cannot be arbitrary. If it is not systematic and equally applied – it is not law.

Ari Shavit of Ha’aretz writes probably the best exposition of this problem:

Some two weeks ago American airplanes fired on two oil tankers in northern Afghanistan. It was a German officer who’d asked the U.S. air force to attack the tankers in the middle of the night, in a populated area. The attack was successful – the two tankers were hit, went up in flames and were destroyed. But the overwhelming American-German air attack killed some 70 people. Some of those brought to hospitals were severely injured – with mutilated faces, burned hands and charred bodies.

It is not clear to this day if most of those who burned to death were Taliban warriors, as NATO first claimed, or innocent civilians who wanted to bring home a bit of oil. One way or another, it’s clear that the United States and Germany are responsible for an extremely brutal attack.

If the international community is committed to international law and universal ethics – which do not discriminate between one sort of killing and another – then it should investigate this villainous assault. If the United States, Germany and NATO refuse to cooperate with investigators, the UN should consider transferring the case to the International Court of Justice in The Hague.

…

If there are is such a thing as an international community, international law and universal ethics, they must seriously consider putting Obama on trial for his responsibility for severe war crimes.

Absurd? Yes, it’s absurd. No sane person in the world believes that the United States, Russia or China could be subjected to purist international law. The United States has killed thousands of innocent civilians in Iraq and Afghanistan and in the last few months encouraged Pakistan to make an extremely brutal military move in its Swat Valley. The United States was not required to account for it because everyone understands that this is the price of the terrible War on Terror. Russia committed blood-curdling war crimes in Chechnya, while China deprives its citizens of basic rights and is conducting a wicked occupation in Tibet. They are not asked to pay for this because everyone understands that you don’t mess with superpowers.

But not only superpowers are immune. Saudi Arabia practices an open, declared policy of discrimination against women and the international community does not see. Sri Lanka is crushing the Tamil national movement, causing a ghastly humanitarian disaster, and the international community does not hear. Turkey is brutally oppressing the Kurdish minority, and the international community does not speak.

Only in matters involving Israel, do international law and justice suddenly discover that they have teeth. Only when Israel is involved is the judgment administered out of context. Only Israel is required to uphold a moral standard no superpower or Middle Eastern state is required to uphold.

Over the course of the military offensive in Gaza, Israel used excessive firepower and this must not recur. Severe incidents took place during the operation which must be investigated. But the inquiry must be carried out by us, and among ourselves. As long as Judge Richard Goldstone doesn’t probe the United States, Russia, China, Saudi Arabia, Sri Lanka or Turkey, just as he probed Israel, he is not a moral figure. A law is a law only when it applies to everyone and does not discriminate, as Goldstone did.

And with that, dear friends, goodbye for the holiday. May you all have a productive, meaningful and even slightly redemptive New Year.