Goldstone’s Folly: Disappointing and Perverse
TRANSCEND MEMBERS, 7 Nov 2011
Surely, the New York Times would not dare turn down a piece from the new Richard Goldstone who had already recast himself as the self-appointed guardian of Israel’s world reputation even as he had earlier been anointed as the distinguished jurist who admirably put aside his ethnic identity and personal affiliations when it came to carrying out his professional work as a specialist in international criminal law or in carrying out high profile investigative and factfinding missions in the international arena. Goldstone was even seemingly willing to confront the Zionist furies of Israel when criticized by one of their own adherents in chairing the UN panel appointed to consider allegations of Israeli war crimes during the Gaza War of 2008-09 .
A few months ago Goldstone took the unseemly step of unilaterally retracting a central conclusion of the ‘Goldstone Report’ during those attacks on Gaza. The former judge wrote, then in a column in the Washington Post, that the Goldstone Report would have been different if he had known then what he came to know now, an arrogant assertion considering that he was but one of four panel members designated by the UN Human Rights Council, and considering that the other three publicly reaffirmed their confidence in the original conclusion as presented in the report written and released months earlier. What should have been discrediting of this earlier Goldstone effort to restore his tarnished Zionist credentials was this failure to consult with other members of the team before rushing into print with his seemingly opportunistic change of heart. It is also of interest that he chooses to exhibit this new role on the pages of the newspapers of record in the United States, and reportedly escalated the tone and substance of his retraction after the Times rejected the original version of the piece supposedly because it was too bland. To get into print with this wobbly change of position, Goldstone went to these extraordinary lengths.
Now on the eve of the third session of the Russell Tribunal on Palestine scheduled to be held in Cape Town between November 5-7 Goldstone has again come to the defense of Israel in a highly partisan manner that abandons any pretense of judicious respect for either the legal duties of those with power or the legal rights of those in vulnerable circumstances. Recourse to a quality tribunal of the people, in this instance constituted by and participated in by those with the highest moral authority and specialized knowledge, is a constructive and serious response to the failure of governments and international institutions to declare and implement international criminal law over the course of many years, and the unavailability of either the International Court of Justice or the International Criminal Court. Persons of good will should welcome these laudable efforts by the Russell NGO as overdue rather angrily dismiss them as Goldstone does because of their supposed interference with non-existent and long futile negotiations between the parties. Those who will sit as jurors to assess these charges of apartheid against Israel are world class moral authority figures whose response to the apartheid charge will be assisted by the testimony of experts on the conflict and by jurists of global stature. It should embarrass Goldstone to write derisively of such iconic South African personalities as Archbishop Emeritus Desmond Tutu and Ronnie Kasrils or internationally renowned figures such as the morally driven novelist Alice Walker, Nobel Peace Prize winner Mairead Maguire, former member of the U.S. Congress Cynthia McKinney, the 93 year old Holocaust survivor and French ambassador, Stephane Hessel, as well as several other person of high repute.
A further imprimatur of respectability is given to the Russell Tribunal by the participation in the event of Goldstone’s once close colleague, John Dugard, who is internationally regarded as South Africa’s most trusted voice whenever legal comparisons are made between apartheid as practiced in South Africa and alleged in Palestine. Professor Dugard will play a leading role in the Russell proceedings by offering expert testimony in support of the legal argument for charging Israel with the crime of apartheid. Professor Dugard, a widely esteemed international lawyer and UN civil servant, who was scrupulous in his efforts to report truthfully on the situation of occupied Palestine while acting for seven years as Special Rapporteur for the UN Human Rights Council, which led him already in that role, despite his cautious legal temperament, to allege the apartheid character of the occupation in his formal reports submitted to the United Nations several years ago.
Goldstone condemns the venture before it begins without acknowledging the participation of these distinguished participants, scorning this inquiry into the injustice and criminality of Israeli discriminatory practices associated with its prolonged occupation of Palestine by contending that it is intended as an “assault” on Israel with the “aim to isolate, demonize and delegitimize” the country. In the most aggressive prosecutorial style, Goldstone demonizes these unnamed Russell jurors as biased individuals who hold “harsh views of Israel.” The new Goldstone adopts the standard Israel practice of denigrating the auspices and by condemning any critical voices, however qualified and honest they may be, without bothering to take a serious look at the plausibility of the apartheid allegations. The fact that those familiar with the Israeli policies are sharp critics does not invalidate their observations but raises substantive challenges that can only be met by producing convincing countervailing evidence. Unbalanced realities can only be accurately portrayed by a one-sided assessment if truthfulness is to be the guide to decide whether bias is present or not. If the message contains unpleasant news then it deserves respect precisely because delivered by a trustworthy messenger. It should be reflected upon with respect rather than summarily dismissed because this particular messenger has the credibility associated with an impeccable professional reputation, and strengthened in the context of the Russell Tribunal by a wealth of prior experience that predisposed and prepared her or him to compose a message with a particular slant.
The central Goldstone contention is that to charge Israel with the crime of apartheid is a form of “slander” that in his words is not only “false and malicious” but also “precludes, rather than promotes, peace and harmony.”
Of course, it is necessary to await the deliberations of the Russell Tribunal to determine whether allegations of apartheid are irresponsible accusations by hostile critics or are grounded, as I believe, in the reality of a systematic legal regime of discriminatory separation of privileged Israelis, especially several hundred thousand unlawful settlers, from rightless and often dispossessed Palestinians, who are indigenous to the land so long occupied by Israel. The Rome Statute of the International Criminal Court treats apartheid as one among several types of crime against humanity, and associates its commission with systematic and severe discrimination.
Although the crime derives its name from the South African experience that ended in 1994 it has now been generalized to refer to any condition that imposes an oppressive regime based on group identity and designed to benefit a dominating collectivity that coercively through its control of the legal system abuses a subjugated collectivity. It is true that ‘race’ is the basis for drawing the dividing line between the two collectivities, but the legal definition of race has been expanded to make it clear beyond reasonable doubt that the practice of apartheid can be properly associated with any form of group antagonism that is translated into a legal regime incorporating inequality as its core feature. This includes regimes that base their human classification of belonging to a group by reference to national and ethnic identity as is the case with regard to Israelis and Palestinians. The government of Israel has itself drawn attention to this ethno/religious divide by demanding that its Palestinian minority and the Palestinian Authority formally accept its character as ‘a Jewish state.’
The overwhelming evidence of systematic discrimination is impossible to overlook in any objective description of the Israel’s current occupation of the West Bank, and to a lesser degree, East Jerusalem. The pattern of establishing settlements for Israelis throughout the West Bank not only violates the prohibition in international humanitarian law against transferring members of the occupying population to an occupied territory. It also creates the operational rationalization by Israel for the establishment of a legal regime of separation and subjugation. From this settlement phenomenon follows an Israeli community protected by Israeli security forces, provided at great expense with a network of settler only roads, enjoying Israeli constitutional protection, and given direct unregulated access to Israel. What also follows is a Palestinian community subject to often abusive military administration without the protection of effective rights, living with great daily difficulty due to many burdensome restrictions on mobility, and subject to an array of humiliating and dangerous conditions that include frequent Israeli use of arbitrary and excessive force, house demolitions, nighttime arrests and detentions that subjects Palestinians as a whole to a lifetime ordeal of acute human insecurity. The contrast of these two sets of conditions, translated into operative legal regimes, for two peoples living side by side makes the allegations of apartheid seem persuasive, and if a slander is present then it attributed to those who like Goldstone seek to defame and discredit the Russell Tribunal’s heroic attempt to challenge the scandal of silence that has allowed Israel to perpetrate injustice without accountability.
Goldstone’s preemptive strike against the Russell Tribunal is hard to take seriously. It is formulated in such a way as to mislead and confuse a generally uninformed public. For instance, he devotes much space in the column to paint a generally rosy (and false) picture of recent conditions of life experienced by the Palestinian minority in Israel without even taking note of their historic experience of expulsion, the nakba. He dramatically understates the deplorable status of Palestinian Israelis who live as a discriminated minority despite enjoying some of the prerogatives of Israeli citizenship. Goldstone’s main diversionary contention is that apartheid cannot be credibly alleged in such a constitutional setting where Palestinian are currently accorded citizenship rights, and he never dares to raise the question of what it means to ask Palestinian Muslims and Christians to pledge allegiance to ‘a Jewish state,’ by its nature as a fracturing of community based on racially based inequality. Few would argue that this pattern of unacceptable inequality adds up to an apartheid structure within Israel, and the Russell allegation does not so argue, and is likely to forego making the apartheid charge associated with the events surrounding the founding of Israel in the late 1940s because from an international law perspective they took place before apartheid was criminalized in the mid-1970s.
The Tribunal is focusing its attention on the situation existing in the West Bank that has been occupied since 1967. John Dugard has issued a statement to clear the air, indicating that his testimony will be devoted exclusively to the existence of conditions of apartheid obtaining in the occupied territories, which reflects his special competence. [See Statement of John Dugard, “Apartheid and the Occupation of Palestine,” Aljazeera, 4 Nov. 2011; ] That Dugard had to issue such a statement is a kind of backhanded tribute to the success of the Goldstone hasbara effort to divert and distort. For Goldstone to refute the apartheid contention by turning to the present situation within Israel itself, while at the same time virtually ignoring the allegation principally concerned with the occupation is a stunning display of bad faith. He knows better. Goldstone avoids any reference to the Israeli mass expulsion of Palestinians from their land in 1948 and the subsequent destruction of hundreds of Palestinian villages when he attempts to refute the apartheid allegation, which would likely be viewed as legally dubious because of its retroactivity.
With shameless abandon Goldstone relies in his diatribe on another debater’s trick by insisting that apartheid is a narrowly circumscribed racial crime of the exact sort that existed in South Africa is certainly disingenuous. Goldstone takes scant account of the explicit legal intent, as embodied in the authoritative Rome Statute and in the International Convention on the Crime of Apartheid, to understand race in a much broader sense that applies to the Israeli/Palestine interaction if its systematic and legally encoded discriminatory character can be convincingly established as I believe is the case.
The sad saga of Richard Goldstone’s descent from pinnacles of respect and trust to this shabby role as legal gladiator recklessly jousting on behalf of Israel is as unbecoming as it is unpersuasive. It is undoubtedly a process more personal and complex than caving in to Zionist pressures, which were even nastier and more overt than usual, as well as being clearly defamatory, but what exactly has led to his radical shift in position remains a mystery. As yet there is neither an autobiographical account nor a convincing third party interpretation. Goldstone himself has been silent on this score, seeming to want us to believe that he is now as much a man of the law as ever, but only persisting in his impartial and lifelong attempt to allow the chips to fall where they may. Given his polemical manipulation of the facts and arguments makes us doubt any such self-serving explanation based on the alleged continuities of professionalism. It is my judgment that enough is now known to acknowledge Goldstone’s justifiable fall from grace, and for his own sake it is unfortunate that Goldstone did not choose a silent retreat from the fray rather than to reinvent himself as a prominent Israeli apologist.
Palestinian suffering and denial of legal rights is sufficiently grounded in reality that the defection of such an influential witness amounts to a further assault not only on Palestinian wellbeing but also on the wider struggle to achieve justice, peace, and security for both peoples. Contrary to Goldstone protestations about the Russell Tribunal striking a blow against hopes for resolving the conflict, it is the Goldstones of this world that are producing the smokescreens behind which the very possibility of a two-state solution has been deliberately destroyed by Israel’s tactics of delay while accelerating its policies of expansion and encroachment.
In the end if there is ever to emerge a just and sustainable peace it will be thanks to many forms of Palestinian resistance and a related campaign of global solidarity of which the Russell Tribunal promises to make a notable contribution. We should all remember that it is hard to render the truth until we render the truth however ugly it may turn out to be!
Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, author, co-author or editor of 40 books, and a speaker and activist on world affairs. He is currently serving his fourth year of a six-year term as a United Nations Special Rapporteur on Palestinian Human Rights. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies, and since 2005 chaired the Board of the Nuclear Age Peace Foundation. His most recent book is Achieving Human Rights (2009).
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