The Inevitable Attack on the Goldstone Commission

by Kevin Jon Heller

Although often critical of Israel, I have always been sympathetic to Israeli claims that the UN Human Rights Council has deliberately appointed individuals to investigate conditions in the Palestinian territories who were either actually biased against Israel or who at least could not avoid the appearance of bias.  I was completely opposed, for example, to the HRC’s decision to appoint Richard Falk a Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.”

The Goldstone Commission, however, is a different kettle of fish entirely.  Justice Goldstone is, to put it mildly, one of the most eminent international lawyers in the world — a judge for nine years on the Constitutional Court of South Africa; the first Chief Prosecutor of the ad hoc Tribunals; a member of the international panel appointed by Argentina to investigate Nazi activity in the country since 1938; the chairperson of the international inquiry into Kosovo; and so on.  He is also Jewish and a trustee of Hebrew University in Israel.  So it is difficult to plausibly maintain that he is biased against Israel — particularly given that one of his first acts after being appointed by the HRC to investigate Operation Cast Lead was to publicly announce that he would not abide by HRC Res. S-9/1‘s indefensible request to limit the fact-finding mission to Israel’s war crimes, but would investigate Hamas’s war crimes, as well.

Unfortunately, that hasn’t stopped the Israeli government and groups that reject any and all criticism of Israel from attacking the Goldstone Commission:

Some 50 British and Canadian lawyers have signed a public letter protesting the presence of London School of Economics professor Christine Chinkin on the commission. The letter said her participation “necessarily compromises the integrity of this inquiry and its report.”

Chinkin signed a public letter in January that called Israel’s actions “war crimes.” This disqualified her from participating in an international panel investigating whether Israel had, in fact, committed war crimes, the lawyers contended.

Goldstone has rejected calls for Chinkin to step down.

“The letter in question also condemned the firing of rockets by Hamas into Israel and suicide bombings, which it said were also war crimes,” he noted in an interview with The Jerusalem Post in July.

[snip]

Beyond the question of Chinkin’s membership in the four-person panel, the Israeli government has said it views the commission as a fig leaf for an anti-Israel campaign in the Human Rights Council.

The commission’s conclusions were decided ahead of time and were intended to offer legal grounds for an international effort to sue Israeli officials in the International Criminal Court, officials have repeatedly complained in recent weeks.

These are tired and predictable attacks.  Apparently, only individuals who have never publicly expressed an opinion on Israel and Hamas are entitled to investigate the situation in Gaza; criticizing both sides, as Chinkin has done — you can read the letter in question here — disqualifies you as being anti-Israel.  (Because, of course, the only “unbiased” position is one that assumes that Israel never does anything wrong.)  The hypocrisy is self-evident: we all know that the Israeli government and the lawyers mentioned above would have had no problem with Chinkin if she had only criticized Hamas.

The attacks on Justice Goldstone himself, however, are even more disturbing. UN Watch, a right-wing NGO, isn’t shy about expressing its disdain for him: “no one has ever disputed that the Arab-controlled Human Rights Council deliberately selected individuals who had made up their mind well in advance — not only that Israel was guilty, but that a democratic state with an imperfect but respected legal system should be considered the same as, or worse than, a terrorist group.”  Their evidence for Justice Goldstone having already decided, despite his history and his reputation, that Israel is guilty and is no better than Hamas?  Precisely none.

Not that those who are attacking the Goldstone Commission care.  Their goal is to discredit the Commission at any cost, not to understand what actually happened in Gaza.  If doing so requires them to impugn the integrity of one of the world’s most respected human-rights defenders, that is a price they are more than willing to pay.

ADDENDUM: It is incredibly revealing that NGO Monitor’s tendentious attack on the Goldstone Commission mentions that Justice Goldstone was a member of Human Rights Watch — and nothing else about his personal history.

http://opiniojuris.org/2009/09/14/the-inevitable-attack-on-the-goldstone-commission/

22 Responses

  1. I’m glad you linked to the letter.  While the letter is hardly the worst anti-Israeli piece out there, it displays its bias quite prominently. 

    One particular example of its bias and false portrayal of IL is in the 3rd paragraph.  Wherein, the author’s argue that Israel’s response was illegal (and a warcrime) because the causalties caused by Israel were not “commensurate” to the Israeli causalties from the Hamas rocket fire.  Proportionality does not reach so far. 

    Heck, the US and its allies have probably killed many more Afghan citizens than people lost during 9-11.  I guess we’re all committing war crimes now. 

  2. HLS,

    You need to distinuish between proportionality in terms of the jus ad bellum and proportionality in terms of the jus in bello.  The letter does not claim that Israel committed war crimes because the number of Israelis killed was dwarfed by the number of Palestinians killed; it argues that the proportionality between the two is relevant to whether Israel was genuinely acting in self-defence, as permitted by Article 51 of the UN Charter.  (Here, let me note, I agree with Marko Milanovic that the Article 51 criticism of Israel is a red herring, because the use of force provisions in the Charter, to which Article 51 is an exception, only apply between States.)

    The title of the letter implies that the authors believe that Israel’s attacks are war crimes. If so, it seems clear that they are basing that conclusion on traditional notions of proportionality in armed conflict: attacks that cause civilian damage that is disproportionate to to the expected military advantage are war crimes.  (It is very unlikely, to say the least, that Cherif Bassiouni, one of the world’s leading ICL scholars, doesn’t know the difference between the two kinds of proportionality.)

    Note, though, that the text of the letter does not explicitly claim that Israel’s attacks were war crimes; instead, it claims that the attacks violated IHL and IHRL, which is not the same thing.  The text of the letter only mentions war crimes “in addition” to the violations of IHL and IHRL caused by the attacks — concerning “the blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel.” (Also a debatable point.)

    I freely admit that the letter is not the picture of clarity.  One thing is clear, though: the letter accuses both Israel and Hamas of war crimes, so it is hardly evidence that Chinkin is biased against Israel.  Either she’s biased against both Israel and Hamas or biased against neither — unless, of course, you take as an article of faith that all criticisms of Hamas are legitimate and all criticisms of Israel are illegitimate. The Israeli government and Chinkin’s right-wing critics clearly begin and end with that assumption — which is, of course, what motivates the ugly and misguided attacks to which the Goldstone Commission has been constantly subjected.

  3. Kevin,

    I have gone through all the public hearing testimony and your analysis is way off base.  The Goldstone Commission is not about finding “what actually happened” Gaza:

    1.  The one-sided mandate impletented by the HRC was never amended to cover both sides.  Goldstone doesn’t have the authority to amend it.  A similar scenario occurred with the HRC’s investigation on the 2006 Lebanon War.  When the Commission at issue tried to submit evidence regarding Hezbollah, it was rejected b/c the official mandate was to only cover Israel.

    2. The Commission’s work is in violation of several provisions of the International Bar Association’s London-Lund Guidelines regarding Fact-finding inquiries — won’t go into specifics but they are linked in the article currently on our homepage.

    3.  There is no transparency.  Officials of the Commission and Goldstone made personal assurances (to myself and in correspondence I saw) that all submissions to the Commission would be posted on its webpage.  As of yesterday, that has not happened.  Why do they refuse to publicly release these documents?

    3. The Commission cherry picked witnesses to publicly testify and chose the most “shocking” or “emotive” stories (3 days for the Palestinian side, 1 for Israel).  The Commission has refused to provide its selection process (I, and others, have asked repeatedly).  Many of the Palestinian witnesses were already interviewed by the Commission during its field visit to Gaza so the public hearings (in Gaza, anyway) were not to obtain new information but to publicize highly shocking claims.  We have no idea how the “pro-Israel” witnesses were selected.  One of the witnesses, Abed Rabbo, has now given 17 different versions of what happened to him.  See our website for 14 of the versions — and I can provide links to the other 3.

    4.  The Commission heard “secret” testimony as well.   I personally know one witness who was brought by the commission in Geneva to testify but they did it in a secret session prior to the public hearings.  This witness was pro-Israel and gave a lot of exculpatory evidence.  Why was this hidden from the record?  Who else testified secretly?

    5.  Goldstone in his opening remarks of the public hearings in Gaza claimed the proceedings are not judicial in any way.  Then why was the commission accepting “legal briefs” and hearing “evidence” on legal issues germane to whether “war crimes” were committed?  If it was just a public airing of grievances or just to put the “facts” out there, why was it accepting this type of testimony?

    6.  Goldstone also referred to victims of “violations of IHL and int’l hr law” in his opening remarks to the public hearings in Gaza, essentially proclaiming “violations” had taken place before he had even finished the inquiry — and since in his own words it is not a judicial or legal body, (and without even seeing evidence from the Israeli side) how could he make such assessments?

    7.  Re:  HRW.  It is not an irrelevant point.  Goldstone has vociferously defended HRW in the past against critics and was on the board.  How can he possibly assess any evidence HRW provides in an objective manner?  He would have had to recuse himself if it was an actual judicial or legal framework.

    It seems to me that instead of evaluating the substantive claims, you are just issuing a knee-jerk attack against the Israeli Gov’t, UN Watch, and NGO Monitor.

    Anne Herzberg
    Legal Advisor
    NGO Monitor

  4. The only knee-jerk attacks are the ones launched at Justice Goldstone by the Israeli government, UN Watch, and NGO Monitor — attacks that began long before he ever set foot in Gaza.  What a surprise that, having predetermined that Justice Goldstone was biased against Israel — based on nothing other than the HRC’s ridiculously one-sided resolution — you now conclude that, in fact, your original assumption was right.

    I do, however, appreciate the clever rhetorical move that is behind much of the criticism of the Goldstone Commission: Commission seeks cooperation from Israel and the Palestinians; Israel refuses to cooperate; the Goldstone Commission is biased and invalid because it didn’t involve Israel.  Joseph Heller — whom I should identify as a distant cousin, lest Bernstein accuse me of unethically concealing a conflict of interest — would be proud.

  5. Kevin,

    You still have not addressed any of the substantive points I raised regarding potential improprieties with the Commission.

    Anne

    PS I hope your readers will consider my comments, read our article http://www.ngo-monitor.org/digest_info.php?id=2636, and judge for themselves.

  6. By the way, I agree that Justice Goldstone’s former association with HRW is relevant to his credibility.  As is the fact that he is Jewish, a trustee of Hebrew University, and was a judge for nine years on the Constitutional Court of South Africa, the first Chief Prosecutor of the ad hoc Tribunals, a member of the international panel appointed by Argentina to investigate Nazi activity in the country since 1938, and the chairperson of the international inquiry into Kosovo.

    If you actually cared about allowing your readership to make an intelligent and informed decision about whether Justice Goldstone is biased against Israel, you would have mentioned all of those things — not just the one fact that (at least in your view) cuts against his impartiality.  I think we both know why you didn’t.

  7. I am on the record calling Goldstone a well-respected Jurist (http://www.jpost.com/servlet/Satellite?cid=1244371044134&pagename=JPost/JPArticle/ShowFull).

    The other qualifications you mention are irrelevant as to whether he is personally biased regarding this case — are you seriously contending that someone’s religion is proof of objectivity? And what does his serving as the ICTY prosecutor have to do with his personal views on the Israeli-Palestinian conflict? — and whether the Commission has engaged in potential irregularities conducting its inquiry.

    As I am not privy to Goldstone’s inner thoughts, I can only look at what is in front of me — the mandate of the Commission, its members, and how it has conducted its investigation to date.

  8. PS  Irwin Kotler’s take:

    Part I:

    http://tinyurl.com/qhx6cz


    Part II

    http://tinyurl.com/pr46sl

  9. Goldstone’s association with HRW, relevant.  Everything else in his personal history, irrelevant.  Priceless!

    Note, by the way, Herzberg’s rather unusual — to say the least — understanding of relevance. In her view, everything that makes it less likely that Justice Goldstone is biased against Israel is irrelevant because it is not “proof” of his objectivity. But, of course, a fact does not have to “prove” anything in order to be relevant; it simply needs to make a material fact — here, whether Justice Goldstone is anti-Israel — more or less likely. And unless you are completely blinded by ideology, it is patently obvious that a Jew is less likely to be anti-Israel than a non-Jew; a trustee of an Israeli university is less likely to be anti-Israel than someone who isn’t a trustee of an Israeli university; an individual appointed by a State to investigate Nazi activity is less likely to be anti-Israel than someone who was never so appointed; and so on.

    Do those facts prove that Justice Goldstone is not anti-Israel? Of course not — it only makes it much more likely that he isn’t. Just as his former association with HRW doesn’t prove that he is anti-Israel; it simply (at least in NGO Monitor’s view) makes it more likely. That’s why, if NGO Monitor cared to educate instead of propagandize, it would have presented all of the relevant aspects of Justice Goldstone’s bio, instead of ignoring everything that was inconsistent with its preferred narrative (anyone who criticizes Israel is necessarily anti-Israel, because there is no such thing as a valid criticism of Israel concerning its actions in Gaza) in the hope that its readers wouldn’t know better.

  10. Anne and I agree on one thing: readers really should read the report for themselves.  But they need to be aware that NGO Monitor doesn’t even pretend to present both sides of the argument — as their unbelievably selective presentation of Justice Goldstone’s biography demonstrates.

  11. Just a couple additional points and then I’ll stop:

    1.  We report on NGOs and NGO connections — information that is generally omitted in media/gov’t accounts and unknown to the public.

    2.  Goldstone defended HRW against criticisms of Israel bias in an oped he published during the 2006 Lebanon War — so I think that is quite a bit more relevant to what is at issue here. The UN and others (including yourself) have set forth Goldstone’s professional qualifications ad nauseum.

    If, however,  you have information that in his other professional capacities he expressed opinions regarding the role of NGOs in the Arab-Israeli conflict, the role of NGOs at the UN, or even the role of NGOs in general, I would be more than happy to learn about it.

  12.  It seems to me that ANY criticism of Israeli is in fact either ‘bias against Israel” or “anti-Semitic. Justice Goldstein was spared that second label simply because he is Jewish. Forever the perpetual victim, Israel and its supporters quickly and unethically move to discredit its critics who would disagree with its self proclaimed status as this “perpetual victim. Despite the fact this “victim’ attacks Gaza  destroying it and kills hundreds of innocent civilians, continues occupies Arab land, build illegal  settlements including in occupied Jerusalem, imprisons 12000 Palestinians and  tortures them, wages war against other Arab countries, conduct air raids against Syria, Sudan, Iraq, Tunisia, and now talks about attacking Iran. Is Israel still within the realm of international law after all of this, and when it behaves like and in fact is “an outlaw”

  13. Save your breath, people, NGO monitor is not worth it. Their supposed “objectivity” is an AIPAC-like joke, and I suppose at the end of the day no one takes them seriously. Alan Derzowitz should head the Goldstone Commission, right?

    The sad thing is, they will do anything to undermine the rule of international law in Israel, and somehow I do not see how it would possibly benefit Israel or its people in the future.

  14. Kevin, allow me to respectfully disagree with you that Human Rights watch is an “Arab-controlled” this is the first time I hear this notion given that HRW has often and repeatedly criticized Arab government behavior and their systematic abuse of their citizens.
     
    On the notion that Israel has a “respected legal system” perhaps this is true for Jews only. Israel’s legal system allows the torture of Palestinians, holds them without trial, jails them on made-up evidence and allows confessions made up in Hebrew by Palestinians who neither speak nor write Hebrew.
     
     
    Hamas is perhaps a terrorist organization under the US law. But not so outside the US and some European countries. I always wonder what the Palestinians are suppose to do when they see their land is stolen away from them in broad daylight, and their homes demolished with the permission of the same legal system that you mentioned that  it is “ respected”  are they suppose to petition the Israeli courts to lift Israeli’s occupation of their land, or should they send a letter to the editor in protest!
     
     

  15. Ali,

    I did not say — and would never say — HRW is Arab-controlled.  I think you are confusing me with Herzberg.

    I should add, though, that there is absolutely no justification — none — for Hamas launching rockets at Israeli civilians.  Regardless of whether Hamas is a terrorist organization, those are acts of terrorism.

  16. There may be no summary judgment in criminal law, but in normal conversation we can kind of act like there is — we can fairly say that, when nobody is disputing the facts and they lead to clear legal conclusions, it is not a manifestation of bias to state that conclusion. And we can say that’s distinct from stating a legal conclusion in parallel situations where the facts are very much in dispute.

    Hamas’ rocket attacks aimed at Israel are war crimes on face. I do not believe there is any real dispute over the pertinent facts (that is, Hamas doesn’t deny firing off the rockets or claim that it distinguishes between civilian and military targets), and while Hamas often makes conclusory statements as to their attacks’ legality, they are not undergirded by any remotely accepted legal theory that I know of. Hence, it is perfectly reasonable to condemn them as war crimes on face, prior to the investigation. Indeed, I imagine this is why sometimes human rights NGOs spend so little time on Palestinian human rights violations — they don’t need any “investigation”, as nearly all the facts are laid out in front of us and present quite easy cases. What is there to investigate and issue long reports on?

    The allegations of Israeli human rights violations, by contrast, are extremely fact-dependent — the sort of which one cannot justly render a conclusion about pre-investigation. If the facts are as Israel says they are (the civilians were in the vicinity of a munitions dump, the white phosphorus wasn’t dropped on civilian areas, the ambulance was actually running weapons), then there is no war crime. Making the conclusion anyway prior to the investigation to determine which account of the facts is correct is most certainly improper in such a case, and does seem to indicate bias.

    There may be, of course, allegations against Palestinians (such as the use of human shields, or housing munitions in civilian locations) that depend on contested facts; a neutral arbiter should not venture a conclusion on those until after an investigation. And there may be allegations against Israel that are clear just on undisputed facts — where even if the facts are just as Israel claims them to be, the action still was a war crime. (It is a tougher question when the controversy is over genuinely unsettled law. We do like our judges to at least pretend to be undecided until after they’ve heard the arguments — it’s why we asked Scalia to recuse himself from the pledge case — but of course judges are perfectly free to make statements about black letter law principles even if a litigant in front of them is about to make an off-the-wall argument that they’re wrong.). And of course, after the investigation is over the adjudicator should render a verdict as best she can based on her assessment of the evidence, facts, and law.

    But I think it is a bit to slick to argue, as you do, that we should treat situations where the facts are contested the same as situations where the facts are essentially agreed upon for the purpose of assessing bias in pre-investigatory statements.

  17. My question is what is the current definition of reciprocity? It seems like it has changed over the last 20 years.
    If we look back to the original NATO action in attempting to protect the citizens of Sarajevo, the UN allowed reciprocal attacks on the Bosnian Serbs by NATO – but under very tights rules. That is, if one tank was shelling Sarajevo, NATO could respond by returning fire on one and only one Bosnian Serb tank, and that was required to be the exact same tank that was firing into Sarajevo. Oh, in addition they had to get permission from the UN in each instance to return that fire. Now considering that the fastest that permission ever came down was in 4 hours, it is needless to say that that specific tank was long gone.
    If we look at the UN troops that were in Rwanda under a Chapter VII mission, they were similarly restricted by the UN to reciprocate on any attacks on them.
    Let’s now fast forward to today. If we use the UN rules and definitions of the 1990s, then both the US and Israel would have a lot of issues that they would be dealing with in the terms of reciprocity.
    I am not saying the 1990 rules were right – I believe they were too restrictive and in themselves caused a lot of pain and suffering. What I do not agree with is the changing of the rules when it is in favor of and protects the powerful. Whether or not that is true in these cases, or it has just been a natural transition over the last 20 years, I cannot say. What is true is the perception that there is one set of rules for the US and Israel (when protecting their own people or troops) and another set of rules when we are protecting others or when smaller nations are protecting themselves.
    I think that before there are any other commissions, there needs to be a clear definition of what reciprocity is and there needs to be a standard in allowing it or up-holding it that is applied equally to all.

  18. My apologies to Kevin on the mix up. I also want to add my voice to Dan S on the need to have standard and clear definitions of reciprocity.
     
    It is also worth mentioning that there are no military areas or civilian areas in Gaza. This is an area about 100 miles long and 5-12 miles wide packed with 1.5 million people surrounded by a wall and an Israel Army from land and the Israeli navy from the sea.
     

  19. Goldstone’s critique of both sides only serves as a platform to attack Israel. For example, he admits that Israel suffered under incessant rocket fire – only to accuse Jews of not building enough rocket shelters for Negev Bedouins. We presented many other inconsistencies in a rebuttal here

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