Goldstone and the futility of repentance

The Goldstone Report found that Israel broke international law during its war in Gaza [EPA]

It has not been a good two years for South African Justice Richard Goldstone. Handed the politically explosive task of heading a UN fact-finding mission into Operation Cast Lead, Israel’s 2008-2009 invasion of Gaza, whatever conclusions arrived at by the eminent juror and his colleagues were sure to anger one or both parties to the conflict. And so they did.

But Hamas had far less to lose than Israel from the findings of the mission, which responded to the report by mobilising an international campaign to delegitimise not just its findings, but its main author as well. That process has continued to today, even as Goldstone has written yet another op-ed piece for a major US newspaper attempting to rehabilitate Israel’s international image, and in so doing, his own standing within the Jewish community.

During the apartheid era Goldstone was not known as a firebrand activist, but he was among the country’s most important mainstream liberal jurists. He played an important role in formulating the post-apartheid constitution, using his considerable legal, and – as important – diplomatic skills to create a workable political framework for the transition from racist to democratic rule.

As important from the standpoint of the UN Human Rights Council – a body whose own legitimacy has long been questioned, given the number of undemocratic countries routinely represented on it – Goldstone was not just South African, he also had led the war crimes prosecutions for Yugoslavia and Rwanda. On top of that, he also is Jewish, with strong ties to Israel, which offered some insurance against the inevitable claims of anti-Israel bias that would surely be leveled against the mission.

Deliberate attacks, and much more

And the mission’s findings had left no doubt about both Israel’s and Hamas’ culpability in the war, although, given the scale of destruction, it was Israel that received the lion’s share of the blame. Most people – although certainly not the people of Gaza – have either forgotten about or never read the report’s conclusions regarding the scale and intensity of Israel’s violation of international law. It is worth recounting some of the most important findings here, because they are relevant to understanding Goldstone’s later “reassessment” of the war.

Among the almost 500-page report’s findings about Israel’s behaviour during the war, the most damning was its conclusion that Israel had engaged in a “a deliberately disproportionate attack designed to punish, humiliate, and terrorise a civilian population”, which included attacking mosques, homes, schools and other clearly non-military targets.

Crucially, this list of actions did not include the deliberate attempt to murder large numbers of Palestinians, which would have been tantamount to an accusation of genocide. However, the report did further conclude that:

“Operations were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support. The mission considers this position to be firmly based in fact, bearing in mind what it saw and heard on the ground, what it read in the accounts of soldiers who served in the campaign, and what it heard and read from current and former military officers and political leaders whom the mission considers to be representative of the thinking that informed the policy and strategy of the military operations.”

Although the report doesn’t mention it, using violence to force a civilian population to change its political behaviour is in fact among the most basic definitions of terrorism. What the mission concluded, then, although it couldn’t say so politically, was that even if Israel could justifiably argue that it was legally justified in invading Gaza to stop attacks on its civilians, the manner in which Israel prosecuted Operation Cast Lead made it one huge act of state terrorism.

Indeed, according to the report:

“Operations were carefully planned in all their phases. Legal opinions and advice were given throughout the planning stages and at certain operational levels during the campaign. There were almost no mistakes made according to the Government of Israel.”

Later, it argues that the large-scale destruction of Palestinian infrastructure during the war was:

“The result of a deliberate and systematic policy by the Israeli armed forces … Allied to the systematic destruction of the economic capacity of the Gaza Strip, there appears also to have been an assault on the dignity of the people. This was seen not only in the use of human shields and unlawful detentions sometimes in unacceptable conditions, but also in the vandalising of houses when occupied, and the way in which people were treated when their houses were entered. The graffiti on the walls, the obscenities and often racist slogans, all constituted an overall image of humiliation and dehumanisation of the Palestinian population.”

The report continues by criticising Israeli human rights violations in the West Bank, and its violation of the obligation to allow free passage of medicines, food and clothing. But paragraph 1936 of the conclusion is perhaps the most damning:

“The mission further considers that the series of acts that deprive Palestinians in the Gaza Strip of their means of subsistence, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their rights to access a court of law and an effective remedy, could lead a competent court to find that the crime of persecution, a crime against humanity, has been committed.”

And these are just the findings of the first half of the report’s conclusion.

No surprise to most people

Within Israel and the international human rights community, the report’s conclusion were not at all surprising. The sheer numbers killed in the assault – 773 out of 1,387 Palestinian fatalities were civilians, 252 of them children – betrayed the extreme violence it involved.

Not to mention that Israeli leaders spoke candidly and even giddily during and immediately after the conflict about “going wild” and “punishing” Palestinians. This was their way of reasserting Israel’s once-vaunted but recently weakened deterrent capability – which had been won over the six decades of its existence through a specific and unapologetic policy of massive and disproportionate retaliation for any attacks against it.

Moreover, thanks to the rise of social media and “citizen journalism”, the world had seen with its own eyes and in real time the destruction wraught by Operation Cast Lead. Organisations such as B’Tselem, Palestinian human rights organisations, and international NGOs such as Amnesty International and Human Rights Watch, all offered damning reports of Israeli violations of international law during the conflict, as detailed by Ben White in his Al Jazeera column on Wednesday.

A postmodern inquisition

While certainly upsetting, almost none of the actions described by the report on the part of Israel were new. They have been standard practice for the entirety of the occupation; only their scope and scale intensified during the war. Given these factors and the lack of controversy within the human rights community about the nature, extent and rationales behind Israel’s actions, it might well be that Justice Goldstone was unprepared for the unremitting vehemence of the attacks, not just on the mission, but upon him personally, after the report’s release.

These attacks came not just from within Israel, but also from the Obama administration, the US congress and by the Jewish diaspora – especially South African and US Jewish communities, and their representatives in the mainstream media.

Goldstone was accused literally of creating a blood-libel by prominent figures such as Dore Gold and Alan Dershowitz, who even compared him to the Angel of Death, Josef Mengele. Numerous prominent Jews, including Elie Wiesel, declared the Goldstone Report to be “a crime against the Jewish people”. For Wiesel, as for so many other supporters of Israel, “I can’t believe that Israeli soldiers murdered people or shot children. It just can’t be.”

Unfortunately for the hundreds of dead Palestinian children killed in Cast Lead and the thousands of Palestinians killed during the occupation, it just can be, and is, no matter how badly Wiesel wishes it were not so. (Indeed, if a Palestinian with anything close to the prominence of Elie Wiesel claimed that “he could not believe that Hamas murdered people or killed children. It just can’t be,” he or she would be drummed out of polite society.)

But being “fact”, as the mission declared its findings, is one thing; being accepted as such in the public sphere and especially the pro-Israel Jewish and evangelical communities, without whose support Israel could never get away with such actions, is another. And so Phase Two of Operation Cast Lead, the propaganda battle to determine the public narrative of the war, was launched. Its chief target was the integrity of Justice Goldstone.

The accusations of starting a blood libel and of engaging in a deliberate betrayal of fellow Jews are of the same type as the accusations that led to the assassination of Prime Minister Yitzhak Rabin. He was removed from the Board of Governors of the Hebrew University of Jerusalem, and became persona non grata in Israel.

Moreover, Goldstone was essentially excommunicated from his synagogue, and attempts were made to prevent him from attending his grandson’s bar mitzvah.

As a prominent South African Jewish scholar explained to me: “I think international Jewish pressure was relentless and got to him and he felt a sort of community death knell.” A well-known progressive Jewish leader in the US who has faced similarly vitriolic attacks from the Zionist Right seconded this view, arguing that “Judge Goldstone was assaulted harshly by the State of Israel and by the organised Jewish community, publicly repudiated by the Obama administration and Congress”.

What’s worse, he continued, “very few people on the peace side publicly stood up in his defence. No left-wing magazine or newspaper or website came to his defence or praised him, much less offered physical protection”. The significant levels of anti-Semitism in the anti-Zionist Left prevented them from embracing him when he most needed support. Because of this, “who can blame him for feeling scared and vulnerable? His family was under constant pressure to disassociate themselves from him, and yet the progressive forces did little to stand by him”. Like with any form of psychological abuse, if enough people in your community “vilify you as a traitor“, eventually you will start to believe them and change your behaviour to stop the abuse.

Of course, Goldstone is not alone in feeling this incredible pressure. Former US President Jimmy Carter also suffered viscious attacks for his Palestine: Peace Not Apartheid. And, like Justice Goldstone, the pressure grew to a certain level at which he felt necessary to apologise to Jews, “asking for forgiveness” for “stigmatising Israel” – even though essentially the same argument as his was being made by mainstream politicians inside Israel, all the way up to former Prime Ministers Ehud Olmert and Ehud Barak.

Ongoing pressure

And the pressure continues to this day. Right-wing Islamophobe and Washington Post columnist Jennifer Rubin declared even after Goldstone’s latest attempt to reclaim his position that he is “the man who has done more to embolden Israel’s de-legitimisers than any person on the planet“.

Similarly, Jeffrey Goldberg, a writer for the Atlantic who is known for his uncritical and apologistic reporting on Israel, wrote on his Atlantic blog that Goldstone is the “author of a libelous United Nations report on the 2009 Gaza War”.

It seems that even with Goldstone’s latest attempt at “repentance” (as Goldberg terms it), the gatekeepers of the mainstream Jewish public sphere are keeping the screws tight, ensuring that he understands that even more will be demanded of him before he can return fully to the fold.

The cultural revolutionaries of Maoist China had nothing on these grand inquisitors of the organised Jewish community.

What actually was reconsidered

Given the level of attacks Justice Goldstone faced, it’s not a surprise, although it was certainly a disappointment, when Goldstone attempted to “reconsider” the key accusations of the Commission’s report, in an April 2011 Washington Post op-ed. In it, he argued that new evidence provided by the Israeli military demonstrated that while civilians were killed during the war, they were not killed deliberately.

Justice Goldstone’s main argument in this piece was that investigations by Israel since the mission first published its findings “indicate that civilians were not intentionally targeted as a matter of policy”. He went on to praise Israel’s dedication of “significant resources to investigate over 400 allegations of operational misconduct in Gaza”.

Few people in the world accept the Egyptian government’s conclusion after an “internal investigation” into the murder of two dozen Coptic Christians last month that – not surprisingly – the army bore no responsibility for their deaths. And with good reason. No military or police organisation can be expected to engage in unbiased investigations of alleged crimes committed by its own forces. That’s why independent commissions like Goldstone’s are empowered in the first place.

But Goldstone did just that, uncritically accepting an internal Israeli investigation even thought it neither offered evidence challenging the claim that the main killings investigated by the mission were part of a deliberate policy of using disproportionate and indiscriminate force, and in fact followed a long and well-documented pattern of similar behaviour against Palestinian civilians.

Indeed, in the months since the mission’s report was issued, what new independent evidence and analysis was produced reinforced rather than challenged its core findings, but Goldstone mentioned none of this in his article.

Even more, Human Rights Watch produced a report, based in part on discussions with Israeli military officers, only weeks before Goldstone’s article lauded Israel for its investigations, which he similarly ignored, which declared that “Israel has failed to demonstrate that it will conduct thorough and impartial investigations into alleged laws-of-war violations by its forces during last year’s Gaza conflict … An independent investigation is needed if perpetrators of abuse, including senior military and political officials who set policies that violated the laws of war, are to be held accountable”.

Moreover, what was further claimed in the mission’s report, and not denied by Goldstone in this article, was that “collective punishment was intentionally inflicted by the Government of Israel upon the people of the Gaza Strip”, which is itself a war crime, according to Article 33 of the Fourth Geneva Convention.

Moving away from the facts

Goldstone’s half-hearted but much-publicised attempt to reassess the mission’s finding are the first indication that the justice was now operating outside the bounds of objectivity and rules of evidence that guided his work in the past.

While the article might have begun the process of his rehabilitation within the organised Jewish community (it was widely reported on and celebrated in Israel and the US as a vindication of the war), it led to significant criticism by other members of the mission, who took the unprecedented step of publishing a direct rebuke of his article in the Guardian.

In an April 14, 2011 op-ed article they declared that “it is necessary to dispel any impression that subsequent developments have rendered any part of the mission’s report unsubstantiated, erroneous or inaccurate. We concur in our view that there is no justification for any demand or expectation for reconsideration of the report as nothing of substance has appeared that would in any way change the context, findings or conclusions of that report”.

Their argument was buttressed by reports by B’Tselem and other human rights organisations that appeared around the same time as his op-ed, which backed the original report and went even further in their condemnations of Israeli actions and went into significant detail about the “unlawful destruction” wrought by the Gaza war. They confirmed the report’s findings that mass destruction, collective punishment and “humiliation and dehumanisation of the Palestinian population” are viewed in Israeli security doctrine as “a legitimate means to achieve military and political goals”.

Apartheid or something else?

The Israeli invasion of Gaza and the continued and ever-growing occupation of the West Bank and Gaza has intensified comparison of Israel’s policies in the occupied territories by many Palestinians and international activists to those of apartheid-era South Africa. These accusations are not new, and have in fact been levelled by Israelis against their government’s policies for decades.

More infamously for Israel and its supporters, the United Nations passed the “Zionism equals Racism” resolution in 1975, which declared that “Zionism is a form of racism and racial discrimination” and specifically declared its origin and structure to be linked to that of the apartheid government in South Africa.

The resolution was problematic in many respects. These included its application of the term “race” to an ethno-territorial conflict, as well as its uncritical lumping together of the treatment of Palestinians on both sides of the Green Line. More broadly, the resolution singled out Israel for treatment of minority and occupied peoples that was no different from the way a host of other UN member states treated various groups under their control.

But its claim that Israel and South Africa shared a “common imperialist origin”, while simplistic and inaccurate in many ways, does have some historical grounding. Both Afrikaaner and Zionist nationalisms evolved as European settler colonial movements which sought to gain control over territory while displacing and then controlling the existing inhabitants, and both had ambivalent relationships with the imperial power – in this case, the British – under whose rule they lived before achieving independence.

Moreover, as Israel’s occupation of the West Bank and Gaza intensified, the territorial, economic and political matrix of control imposed by Israel upon the occupied territories (which was not yet fully in place in 1975) grew to include not just the systematic expropriation of territory and displacement of Palestinians, but the forced constriction of movement and limitations on employment, restrictions on marriages and unlawful treatment of the occupied population in a host of ways which the Gaza war merely magnified rather than taking to a whole new level.

These policies clearly resemble in myriad ways the strategies of control used by the apartheid-era South African governments.

Because of this, it’s not surprising that many South African activists and politicians, including Desmund Tutu and Nelson Mandela, have harshly criticised Israel’s policies as resembling and even exceeding those suffered by South African blacks under apartheid. Indeed, many South African Jews who participated in the anti-apartheid struggles have made similar claims, including activists such as Denis Goldberg and Ronnie Kasrils, who after a 2004 visit to the occupied territories declared that the occupation “makes apartheid look like a picnic”.

“We never had jets attacking our townships. We never had sieges that lasted month after month. We never had tanks destroying houses. We had armoured vehicles and police using small arms to shoot people – but not on this scale.”

Neither Kasrils nor Goldberg are very invested in the South African Jewish community, whose vehemence in facing down critics of Israel “rivals” its US counterpart, according to the South African scholar I quoted above. But with an organisation named the Russell Tribunal, modelled on the People’s Tribunal on Vietnam established by the late philosopher Bertrand Russell, about to hold another half a dozen or so sessions on the Israeli occupation, this time in South Africa, it appears that Justice Goldstone was called upon, or felt compelled, again to step into the field of battle to defend Israel.

And so, in a November 1 op-ed in the New York Times, “Israel and the Apartheid Slander”, he did just that, arguing that comparisons between Israel and apartheid-era South Africa are “pernicious”, and an “unfair and inaccurate slander against Israel, calculated to retard rather than advance peace negotiations”.

The language and discourse of the article reveal much about the state of the art of Israeli hasbara, or propaganda, not because Goldstone might have been advised on what points to make by Israeli spin doctors but rather precisely because the thinking is clearly his own.

To begin with, Goldstone tags his article to the weeks-old UN General Assembly vote to recognise Palestine, declaring that “the Palestinian Authority’s request for full United Nations membership has put hope for any two-state solution under increasing pressure”.

Not Israel’s ever-increasing settlements (even more of which were announced the day the article was published), not blanket US support for Israel, not even continued violence by Palestinian militants. Just the attempt to gain recognition as a state is for Goldstone the biggest threat to peace.

He then argues that:

“In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute: ‘Inhumane acts … committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.’ Israeli Arabs – 20 per cent of Israel’s population – vote, have political parties and representatives in the Knesset and occupy positions of acclaim, including on its Supreme Court. Arab patients lie alongside Jewish patients in Israeli hospitals, receiving identical treatment.”

Of course, Goldstone is right about the relative status of Israel’s Palestinian citizens, but no serious comparison of Israel with apartheid-era South Africa focuses on the treatment of Palestinian citizens, as undemocratic as it has been in many areas. Instead, the focus has been on the occupation. Indeed, the Bertrand Russell Tribunal describes its focus as on “the ongoing occupation of Palestinian territories by Israel”. Of course, as Israel increases repression against its Palestinian citizens, the analogy begins to hold more water within Israel as well.

When he does turn to the West Bank, Goldstone argues that the situation is “more complex” than in Israel. “But here too there is no intent to maintain ‘an institutionalised regime of systematic oppression and domination by one racial group’.” For Goldstone “this is a critical distinction” – that is, that Palestinians are not a distinct racial group, and so Israel’s policies cannot be compared to apartheid.

Here Goldstone’s analysis is based on a very outdated notion of race, as some sort of distinct biological construct which is different in essence from ethnicity or other markers of communal separateness (even though elsewhere in the piece he uses them interchangeably). In reality, race is a political construct, one that is intimately tied to power and territory – specifically to the power of certain groups to control territory and through it control who has the right to live and work within a given territory.

To argue that Palestinians are not a “race” and therefore Israel isn’t practicing apartheid-like policies is intellectually sloppy, especially coming from a jurist of Goldstone’s stature.

Even more so when the Rome Statute cited by him defines crimes against humanity, of which apartheid is a component, as involving not merely persecution or violence based on race, but instead on “political, racial, national, ethnic, cultural, religious, or other grounds”. If he wished to argue that Israeli policies are not technically apartheid because they are not “racially” motivated, the very definition he deploys to support his argument merely supports the argument that they fall under the broader category of crimes against humanity.

Agreeing in concept, settling in reality

Justice Goldstone’s argument falls further from reality when he claims that “even if Israel acts oppressively toward Palestinians … Israel has agreed in concept to the existence of a Palestinian state in Gaza and almost all of the West Bank, and is calling for the Palestinians to negotiate the parameters”.

This argument could charitably be described as disingenuous. The phrase “agreeing in concept” is literally meaningless, as Israel has long signed onto agreements that it has then violated – this is in fact a good summary of the history of the Oslo peace process, as I and other scholars have documented. One can only imagine Justice Goldstone’s response if a lawyer tried to use similar language in his courtroom.

Finally, Justice Goldstone returns to two of the most prominent themes used by Israel’s defenders: Its actions are defensive and the result of Palestinian provocations, and, in case that argument isn’t persuasive, that both sides are ultimately to blame for the endless cycles of violence:

“But until there is a two-state peace, or at least as long as Israel’s citizens remain under threat of attacks from the West Bank and Gaza, Israel will see roadblocks and similar measures as necessary for self-defence, even as Palestinians feel oppressed. As things stand, attacks from one side are met by counterattacks from the other. And the deep disputes, claims and counterclaims are only hardened when the offensive analogy of “apartheid” is invoked.”

In other words, Israel’s policies of closures, roadblocks and the “security” (for much of the world, “apartheid”) wall have nothing to do with gaining and cementing control over Palestinian territory, but instead are purely defensive in nature. This is blatantly inaccurate, as the geography of the matrix of control makes clear . In fact, the original report states specifically in paragraph 92 that “in the West Bank, Israel has long imposed a system of restrictions on movement”, and that it could not meet with many Palestinian experts because of these ongoing restrictions.

The claim that both sides are ultimately to blame for the ongoing violence is equally problematic. Hamas can and should be called to account for its terrorist actions against Jews and a host of crimes it has committed against Palestinians. But the ultimate responsibility for the violence and decades-long systematic violations of human rights in the Occupied Territories is Israel’s, both as the recognised belligerent occupier of the territories, and as the perpetrator of the vast majority of the violence on the ground.

It’s important to note here that Israel could in fact have occupied the West Bank and Gaza in 1967 and continued the military occupation to this day under the justification of protecting the security of its citizens, within the framework of international law.

It could have done so, however, only if it never established a single settlement, or bypass road or seized and/or destroyed huge swaths of Palestinian property and territory – that is, if it maintained a purely military occupation that did little to disturb the daily life and natural development of the occupied population.

But the occupation has never been about security, it’s been about settlement, pure and simple.

And as long as the occupation remains essentially a settlement enterprise, analogies between Israeli policies in the occupied territories and apartheid South Africa will be accurate, no matter how hard Israel’s supporters, even when they are as eminent as Justice Goldstone, try to deny this reality.

Mark LeVine is a professor of history at UC Irvine and senior visiting researcher at the Centre for Middle Eastern Studies at Lund University in Sweden. His most recent books are Heavy Metal Islam (Random House) and Impossible Peace: Israel/Palestine Since 1989 (Zed Books).

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