The Goldstone Reversal

By Aryeh Neier

This commentary was published in The Jordan Times on 18/04/2011

 

Justice Richard Goldstone was condemned by many apologists for Israel’s human rights record for his conclusion that Israel intentionally targeted Palestinian civilians as a matter of policy during the 2008-9 Gaza war. Goldstone’s United Nations-backed report accused both Israelis and Palestinians of war crimes, and called on both sides to investigate, prosecute and punish their own personnel.

The Israeli government reacted furiously to Goldstone’s efforts. Now he is being condemned by some critics of Israel’s human rights record for retracting his finding of intentionality. The controversy illustrates the care that is required in publishing human rights reports.

What is not in dispute about the “Goldstone Report” is the fact finding on which its conclusions are based. In difficult circumstances, and with no cooperation from the Israeli government, Goldstone documented in substantial detail a large number of Israeli attacks that killed many hundreds of civilians, injured thousands, and destroyed a significant part of Gaza’s civilian infrastructure.

Goldstone also documented attacks against Israeli civilians by Hamas, and did not restrict himself to a discussion of the notorious rockets indiscriminately fired from Gaza. Goldstone included in his report a detailed discussion of Hamas’ seizure of the Israeli soldier Gilad Shalit and its refusal even to allow the International Committee of the Red Cross to see him.

It is extremely difficult to prove a policy of intentionality when conducting human rights investigations. That is why Human Rights Watch, which covered much of the same ground as Goldstone in its own reporting on Gaza - and was also vigorously denounced by apologists for Israeli human rights abuses - did not reach such a conclusion.

But that does not make it wrong for a seasoned investigator like Goldstone, reviewing the evidence that he collected, to infer intentionality from the pattern and quantity of abuses. In certain cases, the evidence requires a judgement on such a question.

The original Goldstone Report could have limited its conclusory judgement to an assertion that Israel did not meet its obligation under the international laws of armed conflict to take all feasible measures to minimise harm to civilians. Yet, because Goldstone went further and found a policy of intentionality, before revising that judgement, he should have insisted on additional evidence that his finding was not warranted. Instead, Goldstone says that his revised judgement is based on the fact that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza”.

That sounds impressive. Yet, to my knowledge, none of those investigations so far has resulted in the criminal prosecution and punishment of any Israeli soldier or official for a human rights abuse committed against a civilian in Gaza. Only three have resulted in indictments. Moreover, there is no indication that any of the Israeli investigations address questions of policy.

In other words, Goldstone’s retraction is either not warranted by the evidence on which he says that he now relies, or it is premature. At the very least, it alleviates much of the pressure on the Israeli authorities to go forward with good-faith prosecutions. It would have been better to wait for the outcome of the Israeli authorities’ investigations.

The most important part of human rights reporting is collecting the facts of abuses accurately. This must be done fairly, so that disproportionate focus on one side’s abuses does not create distortions. And it must be done as quickly as is consistent with accuracy and fairness, so that the information can be used effectively to help prevent additional abuses.

In withdrawing his conclusion that there was a policy of intentional targeting of civilians by Israel, Goldstone has not said that his judgement, based on the evidence before him at the time, was wrong. Rather, he has said that subsequent investigations by the Israeli authorities have made him change his judgement.

The evidence available to him and to us about those investigations is clearly too paltry to warrant such a shift. In recanting on this basis, Goldstone conveys to the Israelis that they can receive absolution from a highly respected voice of the international community by making a show of investigations. Yet his distinguished record in ensuring that human rights abuses are reported fairly and accurately remains untarnished.

The writer, president of the Open Society Institute and a founder of Human Rights Watch, is the author, most recently, of “Taking Liberties: Four Decades in the Struggle for Rights”. ©Project Syndicate, 2011. www.project-syndicate.org