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Richard Falk
Richard Falk
Richard Falk is the United Nations Special Rapporteur on Palestinian human rights.
Goldstone walks alone on a bridge to nowhere
The former judge who wrote the Gaza War report recently - and wrongly - wrote that Israel does not practice apartheid.
Last Modified: 03 Nov 2011 15:11
Judge Richard Goldstone was once critical of Israeli policies but has recently become staunch backer [EPA]

Surely the New York Times would not dare turn down a piece from the new Richard Goldstone. He had already recast himself as the self-appointed guardian of Israel’s world reputation. This, despite the fact that 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.

Goldstone was even seemingly willing to confront the Zionist furies of Israel when criticised 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 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, which was written and released months earlier.

This failure to consult with other members of the team before rushing his seemingly opportunistic change of heart into print with should have discredited this earlier Goldstone effort to restore his tarnished Zionist credentials. 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. Goldstone 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 4-6, Goldstone has again come to the defence of Israel in a highly partisan manner. His stance abandons any pretense of judicious respect for either the legal duties of those with power or the legal rights of those in vulnerable circumstances.

Tribunal long overdue

Recourse to a quality tribunal of the people, in this instance constituted by and participated in by those with the highest moral authority and specialised knowledge, is a constructive response to the failure of governments and international institutions to implement international criminal law. Persons of good will should welcome these laudable efforts by the Russell Tribunal as overdue, rather than 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 authorities, whose response to the apartheid charge will be assisted by the testimony of jurists and experts on the conflict.

Critics sometimes compare Israel's occupation to apartheid in South Africa [Reuters]

It should embarrass Goldstone to write derisively of such iconic South African personalities as Archbishop Emeritus Desmond Tutu and Ronnie Kasrils, or others, such as novelist Alice Walker and 93-year-old Holocaust survivor and French ambassador Stephane Hessel. A further imprimatur of respectability is given to the Russell Tribunal by the participation of Goldstone’s once-close colleague, John Dugard, who is regarded as South Africa’s most trusted voice on comparisons between apartheid as practiced in South Africa and alleged in occupied 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 is an international lawyer and UN civil servant who reported truthfully on occupied Palestine's situation while acting as Special Rapporteur for the Human Rights Council. Despite his cautious legal temperament, Dugard alleged the apartheid character of the occupation in his formal reports submitted to the United Nations several years ago.

Goldstone condemns the venture before it even begins, without mentioning the names of such distinguished participants, scorning this inquiry into the injustice 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, demonise and delegitimise” the country.

Goldstone demonises 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. Instead, it 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. If the message contains unpleasant news, then it deserves respect: precisely because it is 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 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 firmly believe, in the reality of a systematic legal regime of discriminatory separation of privileged Israelis and Palestinians indigenous to the land occupied by Israel. The Rome Statute of the International Criminal Court treats apartheid as one among several types of crimes against humanity, and associates its commission with systematic and severe discrimination.

What is apartheid?

Although the crime derives its name from the South African experience that ended in 1994, it has now been generalised to refer to any condition that imposes any oppressive regime based on group identity and designed for the benefit of a dominating collectivity that imposes its will on a subjugated collectivity. Although "race" is the usual understanding of the collectivity involved, the legal definition is 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, including those that base a human classification of belonging to a group by reference to national and ethnic identity.

The overwhelming evidence of systematic discrimination is impossible to overlook in any objective description of the Israeli 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 justifications for the establishment of a legal regime of separation and subjugation.

Israel's Prime Minister Binyamin Netanyahu does not believe Israel is an apartheid state [Reuters]

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 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 is 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.

His main diversionary contention is that apartheid cannot be credibly alleged in such a constitutional setting where Palestinians 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 Tribunal allegation does not so argue. It 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 criminalised in the mid-1970s.

The Russell Tribunal is focussing 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. 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 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.

With shameless abandon, Goldstone's diatribe relies 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 no 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.

Fall from grace

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 complex than caving in to Zionist pressures, which were even more nasty and 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, 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. The 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 known to acknowledge Goldstone’s justifiable fall from grace.

The Palestinians' long ordeal 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's protestations that the Russell Tribunal will hinder a resolution to 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 and programmes of expansion.

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 see the truth - ugly as it may be!  

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).

He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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