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The following article by Trevor Norwitz, a prominent attorney practicing and teaching law in New York, and the author of a widely circulated critical analysis of the Goldstone Report, is based on remarks he delivered at the UN Watch conference on Israel, human rights and international law, held in Geneva on April 5-6, 2011.

The Goldstone Reconsideration and Israel’s Vindication

Trevor Norwitz

Judge Richard Goldstone deserves credit for his recent op-ed piece in the Washington Post entitled “Reconsidering the Goldstone Report on Israel and War Crimes.” Although I was, and remain, among the staunchest critics of the flawed report on the Gaza conflict two years ago that carries his name, I know it is not easy to admit to being wrong, especially when the stakes are so high.

In a resounding reversal, Goldstone now says, with the benefit of hindsight, that the fundamental conclusion of the Goldstone Report — that Israel deliberately targeted civilians in Gaza — was based on the incomplete record before his mission and turns out to have been incorrect.  “If I had known then what I know now,” he says, “the Goldstone Report would have been a different document.”

At the heart of his article, Goldstone states: “The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the recent report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.”

These statements by the primary author of the Goldstone Report are vitally important, not only for Israel (for whom it is certainly a very welcome vindication), but for all who care about truth, justice and the rule of law.  We live in a time when the tactic of choice of the enemies of Israel — and to an increasing degree of the West in general — is not open warfare but open “lawfare,” the cynical manipulation of law and legal concepts in the court of public opinion and of legalistic institutions like the UN Human Rights Council “whose history of bias against Israel cannot be disputed” (again quoting Goldstone).

Goldstone’s revelations come in the wake of the recent report of the McGowan Davis Committee appointed by the UN Human Rights Council to follow up on the Goldstone Report’s recommendations.  Although not entirely uncritical of Israel’s investigatory process, the McGowan Davis Report concluded that Israel “has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza,” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

This is not a surprise even to Goldstone, who appears to recognize, perhaps belatedly, the true nature of the conflict between the State of Israel and the terrorist groups operating outside of the law who are seeking to destroy it.  He writes: “It was my hope, even if unrealistic, that [Hamas] would [investigate what we said were serious war crimes] . . . At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail future attacks. Sadly, that has not been the case. Hundreds of rockets and mortars have continued to be directed at civilian targets in southern Israel . . . In the end, asking Hamas to investigate may have been a mistaken enterprise.”

As he has in the past, Goldstone expresses dismay that Israel would not cooperate with his Mission. But whereas in the past he simply stood by the findings in his report, based as they were on an incomplete record, this time his lament is because Israel’s position deprived his mission of (at least official) access to the truth.  He says: “I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted as it probably would have influenced our findings about intentionality and war crimes.”

Goldstone notes, for example: “Israel’s non-cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas . . .”

This means that Goldstone now acknowledges that Hamas fighters, who constituted less than one percent of the Gaza population, made up around forty percent of the fatalities in the war, a better soldier to civilian ratio than virtually any war in modern times (and much better than the Red Cross estimate of ten civilians for every soldier killed in wars in the second half of the 20th century).  Of course every civilian casualty of war is tragic.  But in a battle fought under extraordinarily difficult conditions, where Hamas militants hid among civilians, dressed as civilians, used human shields, booby-trapped houses, and abused schools and hospitals as military storage sites or launching pads, these numbers (combined with Israel’s unprecedented efforts to warn civilians) evidence a highly targeted and disciplined campaign rather than an intention to target civilians or an indiscriminate use of force.

None of this is new of course.  What is new is that Goldstone now acknowledges it.

Goldstone does not in his article speak to the serious flaws in the Goldstone Report that I and others have highlighted.  I need not belabor those here as anyone interested can easily find these critiques online.

But more important than what Goldstone did not say is what he did say: that in focusing exclusively on the one-sided record before them, he and his fellow Commissioners did not have the whole picture, and now with so much more information available, it is clear that the worst accusation they made – that Israel intended to harm civilians – was wrong.

Having corresponded with Goldstone for several months over areas of disagreement and common ground, I do not doubt his commitment to the rights of civilians embroiled in war, or his sincerity when he says that he was moved to tears by the devastation he saw in Gaza.  But I believe that he has come to appreciate that the primary causes of that carnage are, in his words, “Hamas’s illegal acts of terror” rather than Israel’s response.  “Israel, like any other sovereign nation,” Goldstone says, “has the right and obligation to defend itself and its citizens against attacks from abroad and within.”

Some of Goldstone’s critics, including among South Africa’s Jewish community, are already dismissing his reconsideration as “too little, too late.”  To be sure, the Goldstone Report unfairly damaged Israel’s standing and reputation in the world, but I am one critic who commends him for having the courage to admit that the primary conclusion of the Goldstone Report was wrong and to try to set the record straight. 

I hope that Secretary General Ban Ki-moon and the various organs of the United Nations will be equally introspective and courageous.  The UN Human Rights Council, if it had any self-respect or concern for its credibility, would issue a formal apology to Israel.  When the institutional biases of the Human Rights Council are addressed, the procedural flaws and fair-process violations that doomed the Gaza Fact Finding Mission to reach a false conclusion are acknowledged, and the lessons of the Goldstone Report are applied to future investigations, then the entire experience will have advanced the cause of human rights and humanitarian law.





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