A Fair-minded Critique of the Goldstone Report

by Julian Ku

Richard Goldstone is getting lots of flak for his recent report on the conflict in Gaza.  Much of this flak is either undeserved or way over the top.  But the unreasonableness of some of his critics does not mean his report was actually good and wise and fair.   The basic problem, as I see it, was that Goldstone and his team was unable to determine crucial but contested facts with an even minimally acceptable level of reliability.  Yet the Report (and Goldstone should have known this) made a variety of official sounding “findings of fact” which are going to be used by anti-Israel propagandists for decades.  A fuller description of this critique is developed in great detail here by Trevor Norwitz, a partner at the well-known U.S. law firm of Wachtell, Lipton, Rosen, and Katz.  It seems like a sensible critique and one that folks like Goldstone should take to heart next time they are offered an impossible fact-finding mission.

http://opiniojuris.org/2009/11/13/a-fair-minded-critique-of-the-goldstone-report/

18 Responses

  1. All one needs to know about Norwitz’s “fair-minded” critique — which is, in actuality, just another right-wing attack on Justice Goldstone and the Report, albeit one that avoids the propagandistic bombast of a Gerald Steinberg — is contained in this early paragraph:

    Almost every one of your “findings of fact” was arrived at using this formula: the direct evidence the Mission collected said X; no evidence to the contrary has been provided; therefore “on the information available to it, the Mission finds” X. And you did this in the full knowledge that you had heard only half the story. I understand that you and your fellow commissioners were outraged by Israel’s decision to snub you (as is evident in the numerous references to their refusal to cooperate throughout your Report — I stopped counting at 40), but if your investigation was truly seeking to uncover the truth, you quite simply could not have reached conclusions and made such momentous and awful accusations based on one-sided evidence.

    Translation: because Israel didn’t cooperate, the only legitimate thing for Goldstone to do was not investigate at all. How convenient for Israel!

    “Fair-minded” indeed.

  2. “Because Israel didn’t cooperate, the only legitimate thing for Goldstone to do was not investigate at all.  How convenient for Israel!”

    Fair point.  But is the corrolary that because Israel chose not to cooperate, Goldstone’s findings of fact based on one-sided evidence are to be taken at face value?

  3. KJH,

    As usual, you are grossly distorting the position you disagree with. 

    Norwitz did not say that Goldstone shouldn’t investigate.  Rather, Norwitz is arguing that Goldstone couldn’t have reached the conclusions that he did based on his methods and the evidence available to him.   But, you know that.  God forbid you engage in good faith on this issue.

  4. JK,

    Thanks for mentioning this article.  I wasn’t previously aware of it.

  5. But one can actually look into Gaza and see what kind of weapons Israel used and the kind of targets Israel had targeted. We don’t need an admission from Israel that they used illegal weapons or that they deliberately targeted civilians in order to terrorize the civilians or as a collective punishment much like the destruction of South Beirut in 2006 by the Israeli airforce.
     
     

  6. HLS,

    Right, Norwitz didn’t say that Goldstone shouldn’t investigate — just that “almost every one” of the Report’s conclusions were illegitimate because they did not take into account the Israeli position that Israel refused to give.  My comment was perfectly fair.

  7. HLS,

    Right, Norwitz didn’t say Goldstone shouldn’t investigate — just that “almost every one” of the Report’s findings of fact are illegitimate because he did not have access to Israel’s position — you know, the one that Israel refused to give.  My comment was perfectly fair.

  8. Prof. Heller,

    I’m surprised at your reaction. For a defense lawyer who’s been strongly defending (and rightly so) Karadzic’s right to a fair trial, you seem to not make much of a fair gathering of evidence…
    And in any case, you’re confusing two issues here. It is one thing to regret that Israel refused to cooperate. They probably should have and it is convenient for them to criticize the report afterwards. I agree with you. But independently of that, the fact remains that the report only had one side of the story and this seriously puts in doubt the reliability of some of the findings.
    Should Goldstone have refused to draw conclusions based on this situation, thus playing into the hands of israel? Was he right in trying to do his job anyway? I don’t know. But you’re being a little disingenuous here in your reasoning imho.
    My impression is that in the broader scheme of things, this report was generally a useless effort. Those in favor of Israel were going to denounce it, and those against Israel already “know” that Israel is committing all these crimes… I don’t question Goldstone’s honesty, but he might have shown a little naivety in not knowing what would happen to his report…

  9. Norwitz’s post differs from most critiques of the Goldstone report insofar as it does attempt to grapple with the report’s text, in between the various ideological platitudes about Israel being uniquely as a sole democracy arrayed against an enemy that wants its own civilians killed for PR purposes. The problem is that it does so in a manner that is tendentious and evinces an ignorance of international law. A few of many possible examples that one could cite:

    1. Many of the letter’s criticisms, especially the procedural ones (use of hearsay, alleged prejudice of members, reaching conclusions despite the non-participation of Israel) stem from holding the report of a commission of inquiry to the standards of a judicial trial.

    The two types of bodies are fundamentally different, as Goldstone has repeatedly made clear. Commissions of inquiry lack punitive power so the typical balance between truth-finding and procedural fairness shifts in favor of the former. Mr. Norwitz’s logic would disqualify, for example, anyone who signed a petition criticizing the apartheid regime in South Africa from sitting on the Truth & Reconciliation Commission; would prevent the 9/11 Commission from blaming Usama bin Laden for the 9/11 attacks; and so on. Moreover, it is puzzling that critics such as Mr. Norwitz could apply the standards of a criminal proceeding to the Goldstone inquiry, since they themselves presumably oppose international criminal trials!

    2. The debate above about Israel’s non-participation ignores the fact that Goldstone commission actually bent over backwards to deal with this problem by seeking out available information (including the lengthy ‘pre-buttal’ report of the Foreign Ministry) to deal with potential arguments that Israel could have raised. In some instances, like specific killings, this approach would not be possible due to the lack of any stated Israeli position. But in well-known attacks like the bombing of the Gaza police graduation ceremony, the Goldstone report went to considerable efforts to analyze the Israeli position. Norwitz’s letter, on the other hand, fails to deal with the considerable IHL work on definitions of combatancy.

    Of course one can always argue that Goldstone could have done a better job of presenting Israel’s arguments — but the point is that he did try to make the best of the situation that Israel put him in. The logic underlying some of the comments above would allow any state to cripple the work of international inquiries through simple non-participation.

    3. Norwitz calls on Goldstone to acknowledge that if Gaza is not occupied as a matter of law, then “many of your allegations would cease to apply” and that Gaza being occupied is a “fundamental assumption” of the report. Putting aside whether one believes Gaza is occupied or not, this question is hardly fundamental to the report. Norwitz does not specify what these “many” allegations are, but the key issues — concerning the conduct of hostilities and specifically deliberate/indiscriminate/disproportionate attacks on civilians or property — are governed by the same rules whether or not there is an occupation.

  10. Dov Jacobs,

    KJH has made his reasoning quite clear.

    For the “alleged” mass murderer that he represents he is willing to make almost any sort of tendentious argument in their favor.  For Israel, he is willing to make almost any sort of tendentious argument against it. 

    If my statements shock anyone, then you haven’t been reading KJH’s posts.

  11. KJH,

    Once again, you are completely confusing the issue.  The argument that the conclusions are illegitimate doesn’t not mean Norwitz is arguing that Goldstone shouldn’t have investigated.  Norwitz’s point is that Goldstone couldn’t have reached such seemingly definitive conclusions on the basis of the available evidence (or lack thereof). 

    This problem with the report is just another in a long line of problems. 

    Norwitz’s analysis of the language used in the Goldstone report when describing the purported actions by Hamas and Israel was most interesting.

  12. Here is just one example of many where Goldstone willfully ignored exculpatory evidence in the public domain b/c it didn’t fit his narrative that Israel deliberately targeted civilians:

    http://tinyurl.com/ylecoqa

  13. Why, Kevin, you say “right wing” as though it’s a bad thing! :)

  14. Anne,

    Thanks for the linking to that article.  Dore Gold was rather unconvincing on that point at the debate.

  15. HLS,

    Your attempt to somehow link my work with Dr. Karadzic to my opinions about the Goldstone Report is truly pathetic, even for you. It’s shame you no longer even attempt to construct a coherent argument, contenting yourself with attacking me.

  16. Prof. Heller,
    For the record, i was not on the same line of argumentation as HLS. And I would like your thoughts on my point about you confusing two aspects of the situation.

  17. KJH,

    It all ties in. 

    In your posts on Israel, you have repeatedly shown that you rarely, if ever, judge Israel action evenhandidly, let alone give them the benefit of the doubt.  Rather, you argue adamently for the worst possible interpretationws of Israeli action, whenever some controversy erupts. 

    On the other hand, you usually, if not always, give organizations like HRW (or reports like Goldstone’s) the benefit of the doubt in their criticisms of Israel and often make great leaps of logic and rhetoric in defense of them against their detractors. 

    As well, some of your arguments regarding the Karadzic situation border on the absurd.  You absolutely should represent him zealously (assuming that standard holds for the unusual position you are in re: Karadzic). 

    But, it quite ironic that you arguably go beyond mere zealous advocacy in your arguments in favor of an “alleged” mass murderer, and at the same time appear to zealously advocate against Israel — often stretching the normal bounds of logic and rhetoric in your arguments against Israel and in favor of their detractors, HRW, Goldstone, etc. 

    Finally, KJH, I am only following in your footsteps.  As you can plainly see, I both attacked your bias (which can be construed as a personal attack) and provided a substantive argument in my previous two posts.  You just focused on the personal attack, which is quite natural.  But, you frequently mix dismissive personal attacks with substantive arguments in your posts, and I was just following your lead.  

    My point was to note the curious line of bias than runs through your public positions. 

  18. HLS,

    I realize that invective, not argumentation, is your weapon of choice — but I’m curious which of my arguments regarding Dr. K “border on the absurd.”  As is your wont, you don’t bother to identify any, much less explain to those of us less enlightened as yourself why they are absurd.

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