JUDGEMENT OF GOLDSTONE
By David E. Kaplan
An abridged version of this article appeared in the Metro supplement of the Jerusalem Post on October 16, 2009 under the headline OUTCAST
Over the past few weeks much of the talk around the coffee tables of former South Africans in Israel has been on the Goldstone Report.
Understandable. Justice Richard Goldstone until recently enjoyed iconic status within the South African Jewish community as a respected international jurist championing human rights. Today many of them feel betrayed. As one remarked: “The only human rights he has neglected, are those of his own people.”
Metro spoke to former South Africans, some of whom decry his motives for accepting the position to head the mission to investigate possible war crimes in Gaza while others preferred to respond to the report on legal grounds. The writer found no Goldstone supporters; at least none who were prepared to be quoted.
“The man is over-ambitious and wants to take over from Ban Ki-Moon as Secretary General of the UN,” says Bernhard Lazarus from Tel Aviv a former head of the Jewish community in Durban, Natal and who made aliyah in January this year. He is also a member of the Board of Governors of Tel Aviv University. “If Mary Robinson – no friend of Israel – had reservations of taking the position, why did he? Sheer arrogance,” he asserts. “Goldstone had been out of the limelight of late and possibly believed he could build on his reputation on his earlier high profile prosecutions of the thugs following the civil wars in Rwanda and the Balkans.”
Another new immigrant who shares this view is Mark Reichenberg, who is the Chief financial Officer of a company in the Sharon. Reichenburg came on aliyah from Johannesburg in July.
“I have followed the Goldstone debacle with great interest and tremendous sadness and wonder how far a man’s ego takes him that he can sell out his people and his own integrity for personal advancement.” Reichenberg has no doubt Goldstone is chasing the top spot at the UN. Questioning the Judge’s liberal credentials, Reichenberg asks “Where was Goldstone when racism was at its horrific peak in South Africa, when detention without trial was the order of the day, when families were routinely separated, enforced by racial legislation and when death of black dissenters in police custody was commonplace? Did he then stand up in world forums and cry out against the ‘crimes against humanity’ perpetrated by the State in his own country? No, instead, he in 1980 accepted an appointment as judge during the apartheid era when other advocates more visibly liberal were ignored or declined the position.”
While acknowledging his chairmanship in 1991 of the ‘South African Standing Commission of Inquiry Regarding Public Violence and Intimidation’, later known as the ‘Goldstone Commission’, “this was already when the tide had already turned. It was the twilight days of apartheid.” Mandela was released in 1990 and emerged as President of South Africa in 1994. Reichenberg sees Goldstone as a shrewd opportunist who is “quick to pick up which way the wind blows” and set his sails accordingly.
These accusations are not new. In his book, ‘South Africa’s Brave New World’ – The Beloved Country since the End of Apartheid, (published 2009), R.W. Johnson writes on page 153: “Throughout his career Goldstone had been criticized for his sheer ambition; De Klerk (former President of South Africa and Nobel Peace laureate, who brought an end to apartheid) noted how “some of his colleagues criticized Goldstone for being over-ambitious and how it was rumored that he saw himself succeeding Boutros Boutros-Ghali one day as UN Secretary-General, leading to his nickname ‘Richard Richard-Goldstone.”
Supporting Reichenberg’s contention, Johnson writes that accepting a judgeship during the apartheid period attracted criticism from liberal circles “because it contrasted with many of the anti-apartheid lawyers who refused promotion to the judiciary where they would have had to apply apartheid laws.” (Page 154)
Retired businessman Maurice Ostroff from Herzliya is well-known within the local South African community for his constant battle against global anti-Israel bias. His exchanges with politicians, scholars, academicians, military personal and activists are widely circulated. In the build-up to the Commission’s report, Ostroff engaged Goldstone in an exchange of emails amounting to a robust debate on the core issues of the war in Gaza.
Disappointed, Ostroff decries the Report’s “missing testimony.” “One of the glaring defects,” says Ostroff, “was the Mission’s failure to live up to its designation as ‘fact-finding’.” It needed to examine all possible facts, “as opposed to unsubstantiated opinions and to report on such facts even when contradictory to preconceived opinions.”
He insisted that unless the mission sought out Palestinian witnesses “who had fled from Hamas and who spoke about the abuse of ambulances and hospitals, it was in danger of making far-reaching recommendations based on inadequate information.”
Ostroff says he was astonished at how the Mission dismissed a video clip showing Fathi Hawad a member of the Palestinian Legislative Council boasting of using human shields. While “the Mission finds this statement morally repugnant, it does not consider it to constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack”. No reason was given for this remarkable conclusion says Ostroff, other than “The government of Israel has not identified any such cases.”
Another area of disappointment for Ostroff was Goldstone’s failing to live up to his public undertakings. “Following his statement at a press conference when he said that the mission would rely strongly on military advice, I strongly recommended that Colonel Richard Kemp, a former commander of British forces in Afghanistan and adviser to the UK cabinet, who had expert knowledge of warfare in conditions similar to those in Gaza be invited to give evidence. In a BBC interview in January 2009, Kemp expressed, “I don’t think there has been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF in Gaza.”
Ostroff describes as incomprehensible Goldstone’s reply to him that they ignored Col. Kemp “because the Report did not deal with the issues he raised regarding the problems of conducting military operations in civilian areas and second-guessing decisions made by soldiers and their commanding officers in the fog of war. The Mission avoided having to do so in the incidents it decided to investigate.” This is astonishing, says Ostroff. “The entire fact-finding mission was precisely about military operations in civilian areas.”
Ostroff feels that the credibility of the report would certainly have been enhanced had it referred to Kemp’s remarks that “a battlefield – in any kind of war – is a place of confusion, chaos, and fast-moving action.” Regrettably, notes Ostroff, the report “ignored the context explained by Colonel Kemp that in the type of conflict that the IDF fought in Gaza and in Lebanon, and that Britain and America are still fighting in Iraq and Afghanistan, these complexities are amplified by the fighting policies of an enemy that carefully studies the international laws of armed conflict. They know that a British or an Israeli commander and his men are bound by international law and the rules of engagement that flow from it, and they do their utmost to exploit this. And so they deliberately use mosques, schools, and hospitals as strongholds, inviting attack to produce international outcry and condemnation.”
Like Hezbollah, Hamas “proved highly skilled at driving the media agenda,” says Ostroff, “adept at staging and distorting incidents and which escaped the antennae of the Goldstone Commission.”
No stranger to holding top leadership positions in her community both in South Africa as well as in Israel, where she was for many years the wife of an Israeli judge before his passing, Annette Miliner-Giladi of Kfar Saba is incensed. “Goldstone may have proved a disappointment to our community, but to our People and to word Jewry, a disaster.” That he has “cast Israel as perpetrator and Hamas as victim is inexcusable. He has personally perpetrated a gross injustice by damning our young men and women in uniform, who were fighting according to the rules of war to protect our State of Israel.” Embellishing on the extraordinary and unprecedented lengths that the IDF went to warn the civilian Gazan population, “he paid scant attention to the Hamas militants hiding in schools, mosques, hospitals and apartments. If all so-called ‘Zionists’ were like Goldstone, we would not have a Jewish state. Is it any wonder, the Palestinians want his Report debated as soon as possible at the UN? Whether he intended it or not, Goldstone is now Hamas’s champion.”
Originally from Cape Town, Charles Abelsohn is a lawyer with a large Israeli corporation. He draws the writer’s attention to a letter from Aharon Leshno Yaer, the Israel Ambassador to the UN in Geneva to Goldstone explaining why Israel declined to participate with the Mission. One paragraph reads: “Indeed it was this prejudicial and one-sided mandate which prompted many states, including the European Union, Canada, Japan and Switzerland, to refuse to support the Resolution and which led a distinguished list of human rights experts to decline the invitation to head the proposed Mission. As Mary Robinson, former High Commissioner for Human Rights, stated, explaining her refusal to serve as Head of the Mission: “I am afraid the resolution is not balanced because it focuses on what Israel did, without calling for an investigation on the launch of the rockets by Hamas. This is unfortunately a practice by the Council; adopting resolutions guided not by human rights but by politics.” (Le Temps, 4 February 2009)
The Ambassador also thought it appropriate to express reservations over one member of the Mission who had been a signatory during the conflict to a public letter stating that “the rocket attacks on Israel by Hamas do not amount to an armed attack entitling Israel to rely on self-defence.” (Sunday Times, Letters Page, 11 January 2009).” The clear pre-conceived notions of certain judges did not seem to concern Goldstone or alternately he did not care, believes Abelsohn. “As a Jew, he will be perceived as a ‘Quisling’; as a justice, his reputation tarnished.”
Abelsohn quotes one example after another through the 570-page report that exposes failings in the methods of questioning the witnesses and the weighing of their testimony. Most striking were the instances of “leading the witness.” He cites the example of one of the commissioners, Colonel Desmond Travers who prefaced his question to the witness with “it maybe not within your expertise” and then continues to say “there have been instances of the shooting of children in front of their parents. As an ex-soldier I find that kind of action to be very, very strange and very unique. I would like to ask you if you have any professional insights as to what mindset or what conditioning or what training could bring around a state of behavior that would cause a soldier, a fellow human being to shoot children in front of their parents. Do you have any professional insights into that kind of behavior?” And this is after Travers has admitted that the witness was hardly qualified to answer the question!” This line of questioning argues Abelsohn “was to paint the old-age picture of the Jew as a child-killer. It was nothing less than indulging in blood libel and Goldstone, who could have stopped this disgraceful and leading questioning, was happy to let Travers proceed.”
The report says Abelsohn “relieves much of the blame to Hamas, by implying that the attacks on Israelis were by a bunch of individuals acting independent of central authority. While the report concludes that there were serious violations of human rights by Israel during the three weeks of war, in the preceding seven years of rocket and mortar on Israel there were only “possibly” crimes against humanity.”
There is also no reference in the report “from where in Gaza the 8000 rockets directed at Israel were fired from and no effort was made to learn where they had been stored.” Abelsohn describes some sections of the report “as something straight out of Kafka.” Reading from paragraph 5 in the Report’s Executive Summary, “the closest the commissioners arrived at acknowledging that Palestinian combatants were hiding in civilian premises were when Israeli soldiers were accused of blindfolding and handcuffing Palestinian men forcing them to walk ahead towards residential areas in which Palestinian combatants were suspected of hiding.” In other words, “the only mention of the possibility of Palestinian fighting from residential areas was in the context of Israelis using Palestinians as human shields.”
As expected, the South African Zionist Federations both in South Africa and in Israel (Telfed) released press releases condemning the report. Avrom Krendel Chairman of the SAZF wrote that Goldstone has tarnished his legacy “from his previous career of prosecuting crimes in the former Yugoslavia and Rwanda,” and that the report should “be treated with contempt having given legitimacy to terrorist’s initiatives while ignoring the obligation and right of every country to defend itself.”
Maish Isaacson, Chairman of Telfed, disdainfully described the Report as “legal manipulations” designed to “turn reality on its head” by falsely accusing “our sons and daughters serving in the army as behaving like criminals.”
To crown “Goldstone’s failings”, Abelesohn adds the following: “If as he has said that he has hoped to contribute to the peace process, he has achieved quite the opposite – the probable suspension of serious peace negotiations between Israelis and Palestinians.”
Explains Abelsohn: “I live in Kfar Saba, a few kilometers from Kalkilya; well within potential rocket and mortar range. I supported Rabin and the Oslo Process and advocate the ‘Two State Solution’, but until the laws of war have been clarified providing the right of a nation to defend itself, Israel will be unable to relinquish any further territory. Suicide is not an option and with Goldstone having negated Israel’s right to defend itself against a terrorist organizations engaged in anti-civilian warfare, the journey ahead to peace has been extended not shortened. This has been Goldstone’s contribution.”