Richard Goldstone’s recent op ed in the Washington Post has caused a flood of discussion of what we call the Goldstone Report. I think there are three issues relating to the report and its current fallout worth considering. In this post, I will address the bias of Goldstone and the report. In the next, I will address the issue of ‘intentionality’ addressed in Goldstone’s op ed, and in the third I will address the issues raised by the Goldstone Report that weren’t addressed in his op ed.

Goldstone’s personal bias

The UN, so far as I know, has not appointed a Palestinian to investigate potential human rights violations by Israel or Palestinians. However, it is considered normal, and unproblematic, for a Jewish person to investigate Israeli and Palestinian human rights violations. Another obvious case would be Richard Falk, who is currently fulfilling his six-year term as the UN Special Rapporteur on the human rights situation in the occupied territories. As he is generally considered very critical of the Israeli government, it is rarely considered an issue. Yet, is this really appropriate when human rights violations are committed? It may seem more compelling if a member of a certain ethnic group speaks out against human rights violations committed by the group to which they belong, but apprehensions of bias are not unreasonable. Such apprehensions may be countered by a prior demonstration of willingness to criticise the government in question; yet this, too, could be deemed a demonstration of bias, in the sense of having pre-judged the issues before the relevant investigation occurred.

While nationalism does not always blind people, it can often influence a person’s mindset unconsciously. It can also be a source of ongoing pressure, as the case of Goldstone has revealed. Richard Goldstone is a man who has been deeply involved in the Jewish community in South Africa, and also has strong ties to Israel. He explained to Ha’aretz that he was ‘extremely upset’ by accusations made against him regarding his appointment, and their effect on his family. These included an infamous attempt to prevent him from being able to attend his grandson’s barmitzvah. Other, less publicised forms of pressure were ongoing. The Forward, a Jewish American magazine, reported:

“It has been like watching an innocent man whipped at the stake,” said Goldstone’s friend Letty Cottin Pogrebin, founder of Ms. magazine. “His dedication to Israel is so strong and rooted. He suffered at the thought that his work was being used to delegitimize Israel. It truly wounded and pained him.”

“His family is taking terrible strain,” reported a close South African friend who would speak only on condition of anonymity. “He told us, ‘If I had known what it would do to my family, I wouldn’t have done it.’”

Meanwhile, Goldstone’s daughter said ‘Had Richard Goldstone not served as the head of the UN inquiry into the Gaza war, the accusations against Israel would have been harsher’. Goldstone did not wish to comment on this particular issue, but agreed that he was a ‘proud Jew’ who ‘loves the State of Israel’. When asked his thoughts on Israel and Zionism, he said:

I’ve worked for Israel all of my adult life. I was I think the first chairman of the [inaudible] association in South Africa. I’ve been involved as a governor of the Hebrew University for what must be thirty years. And I’ve worked in World ORT since 1966. I’ve been involved in working for Israel and I’m a firm believer in the absolute right of the Jewish people to have their home there in Israel.

Goldstone used to be on the Board of Governors of the Hebrew University, though he was removed from this post after the issuing of the Goldstone Report. Also of particular interest is Goldstone’s ‘dear friend’, Aharon Barak. Barak was Israel’s Supreme Court President, and Goldstone described him as his hero and inspiration. Barak agrees Goldstone has ‘very deep ties to Israel’.

In a debate on the report, Goldstone revealed:

I must say that my visit to Gaza turned out very differently from what I’d anticipated. Frankly, and I make no, and I’m not ashamed to say it, I was very nervous, a Jew going to Gaza controlled by Hamas, especially when the first reaction to my appointment from Hamas was to reject my leading it because I was Jewish. My wife sitting here will remember that three nights before I went, I woke up in the middle of the night after a terrible nightmare, with sweat on my brow, because I had a vivid dream that I’d been kidnapped by, by Hamas, and people in Israel were rejoicing. [laughter] That was the nightmare, but it was based on real fear.

In light of this, I think it is reasonable to suggest that Goldstone had a predisposition in favour of the Israeli government and against the Hamas pseudo-government.

Manifestations of Goldstone’s Bias

The three primary manifestations of Goldstone’s bias, in my view, are, from least to most serious: a disproportionate focus on Hamas’ human rights violations, commentary on the report that has contradicted its carefully documented empirical claims, and the failure to consider perhaps the most important issue about Israel’s attack on Gaza.

As far as Hamas goes, the Goldstone Report demonstrates clearly that it intentionally committed war crimes. For example, on 5 January 2009, Mahmoud Zahar – one of Hamas’s co-founders and leading figures – declared that ‘the Israeli enemy … shelled everyone in Gaza. They shelled children and hospitals and mosques, and in doing so, they gave us legitimacy to strike them in the same way’.

However, the scale of these war crimes should be considered. Thirteen Israelis were killed during the hostilities, three of them non-combatants. In seeking to quantify the damage caused during the attack on Gaza: ‘a total of nine schools and kindergartens in Sderot, Beersheba, Ashdod, Ashkelon and Kiryat Ha Hinoch were hit and damaged by rockets. Two kindergartens were struck and damaged by rocket fire in Ashdod. On 8 January 2009, a Grad rocket hit a school in Ashkelon.’ The Goldstone Mission ‘was not able to obtain an estimate of the financial cost of the damage to property caused by rocket and mortar fire’. However:

In its paper of July 2009, the Government of Israel stated, “for direct damage caused to buildings or property as a result of rocket or mortar attacks 2,400 claims, amounting to a total of 31 million NIS ($7.95 million) were submitted in 2008, in addition to 2,300 additional claims between January and July 2009, of which a total of approximately 25 million NIS ($6.4 million) was granted thus far.

Twenty pages – 97 paragraphs – of the report are devoted to the rockets. They chronicle every conceivable piece of information about Israelis traumatised by such rocket firing. One hundred and seventy-five pages are devoted to Israel’s attack on Gaza. While the study of the rockets and mortars fired from Gaza is comprehensive, the Mission elected to investigate only a handful of Israeli atrocities during the invasion of Gaza. The Mission should be commended for carefully documenting the human rights violations of Hamas, Fatah and Israel. But this created an artificial even-handedness, despite the obvious disparities between the human rights violations committed by Israel and Hamas. This reflects bias, insofar as it did not attempt to comprehensively document human rights violations by Israel (regardless of time and resource constraints).

In terms of contradicting the report’s findings, Goldstone’s recent op ed was not as problematic as one he published in the Jerusalem Post in October 2009, in which he claimed that ‘Israel has a strong history of investigating allegations made against its own officials reaching to the highest levels of government’. In fact, the report documents the opposite at length. For example, it notes that in ‘the past, every case in which a Palestinian not participating in hostilities was killed was subject to criminal investigation. This policy changed in 2000. Criminal investigations are now the exception’. Citing Yesh Din, they reveal that ‘over 90 per cent of investigations into settler violence are closed without an “indictment being filed”’.

The report found that:

If settlers are convicted, the sentences are reported to be very light. This practice should be contrasted with the harsh treatment and punishment meted out to Palestinians who harm Israelis. …Similarly, action against members of security forces who commit acts of violence, including killings, serious injuries and other abuses, against Palestinians is very rare. Information available to the Mission points to a systematic lack of accountability of members of the security forces for such acts.

The Mission concludes that there are serious doubts about the willingness of Israel to carry out genuine investigations in an impartial, independent, prompt and effective way as required by international law. The Mission is also of the view that the Israeli system presents inherently discriminatory features that have proven to make the pursuit of justice for Palestinian victims very difficult.

The most important issue of bias in the report is on the question of Israel’s choice to use force. That is, the Goldstone Report does not address whether Israel had the right to use force in the first place, which in my view is the most important question to be addressed. It is not that the Mission was unaware of the importance of the issue. A group of distinguished jurists wrote a letter to the Times, noting that ‘Israel’s actions amount to aggression, not self-defence, not least because its assault on Gaza was unnecessary. Israel could have agreed to renew the truce with Hamas.’ One of the signatories to this letter was Chinkin, who was a member of the Mission. Obviously it’s an important question, and the report failing to address it was a shameful dereliction, effectively granting Israel the right to attack Gaza without cause.

It is particularly significant because the facts are uncontested by the Israeli government. The Ministry of Foreign Affairs agreed that there had been a six-month ceasefire until shortly before the attack; that ‘Hamas was careful to maintain the ceasefire’, but on 4 November Israel broke the ceasefire and attacked Gaza, killing seven Palestinians. ‘In retaliation, Hamas [and other groups] attacked Israel with a massive barrage of rockets.’ Only in August, Ehud Barak had praised the ceasefire’s effectiveness. Then Israel consciously rejected Hamas’ offer for a renewal of the ceasefire, conditioned with an easing of the blockade, instead choosing to go to war.

Why war is waged was once considered by Australia’s progressive intelligentsia to be of great significance. Indeed, this is why Raimond Gaita was able to assemble a group of contributors to explain Why the War Was Wrong. He wrote:

If we fought an unjust war, then the intentional killing even of the evil-doers amongst the Iraqis will count (morally) as murder, and the unintended deaths of others will be on our heads, whether those deaths were caused by us or by the Iraqis. …if you attack someone unjustly, and unintentionally injure or kill an innocent bystander, or if you attack someone unjustly and they unintentionally injure or kill someone to protect themselves, then moral responsibility for the unintended deaths falls on you. …To put the matter bluntly, if you are a coalition soldier in Iraq, then whether or not you should be there will radically affect what can be said in your defence when you shot civilians because you feared they might be suicide bombers or because you could not tell them apart from the Iraqi soldiers who shed their uniforms to mingle undetected amongst the civilians.

He stirringly concluded: ‘Only if you wage [war] as a last resort can you seriously claim that lives were unavoidably sacrificed and only the serious effort to avoid sacrificing even one life is consistent with claiming that each life is a miracle. That may sound like high-minded hyperbole: it should sound like a tautology.’

Strangely, in his book of essays on the slaughter in Gaza, not a single contributor advocated vaguely similar ethical lines (perhaps excepting Ghassan Hage), including the professor of moral philosophy and editor of both books.