The Good ship Goldstone
With Israel''s Gaza War III raging at full bore, the UN Human Rights Council created a "commission of inquiry" to investigate Israel''s human rights violations in the strip. Note well. Israel is already guilty before the ink is dry. And note the omission: the resolution does not mandate the inquiry to investigate fairly and impartially.
The last was no drafting error. The Council may be biogoted, but it is not stupid. UN lounge-abouts are capable of learning from their mistakes. Pretending that its investigative model known afterwards as the Goldstone inquiry, was above board left the Council with egg all over its humane mask. It learnt a good lesson. And it has no intention of going there again. Going where? We''re about to see...
The laws of war! The devil is in their detail, detail looks at intentions; intentions reside in the mind, and the mind can change. How the mind of a Jewish man of law can change!
Richard Goldstone changed his - publicly, in the ‘Washington Post’. The one-time constitutional court judge of SA, prosecutor of the International Criminal Tribunal for Yugoslavia, and Chairman of the UN Human Rights Council fact-finding report on the Gaza conflict (2008-2009), changed his mind. From what did he change it, and to what?
In the ‘Goldstone Report’ he had accused Israel of intentionally targeting civilians during the Gaza invasion. A year and a half later, in an op-ed he retracted. “Civilians,” he declared now, “were not intentionally targeted as a matter of policy.” To all it came as a shock, to many a shock and a blow. They would not allow that he had changed his mind – his fellow signatories, the activist movement, people of the Moral Shop, and commentators. But Goldstone could not have made it clearer:
“I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of even-handedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.” (‘Washington Post’, April 1, 2011)."
Notice how Goldstone really changed his mind on more than one score:
(1) the finding that Israel was guilty of war crimes, and
(2) the objectivity of the mission itself.
Now he was saying that Israel was not guilty, and that the mission had not been objective from the outset. In the heat of the outrage that followed the op-ed, the second of his about-turns escaped attention. Yet more than the first, it opened the dykes. For if the mission was biased from the beginning then ipso facto the work of the committee could not have been otherwise. The two are not separable. A vessel that is unseaworthy when it sails cannot be made seaworthy during the voyage. And no one, except perhaps Goldstone the penitent, drew that lesson. If anything the character of the crew on board sealed the doom of the stricken vessel.
Apart from the captain, the ‘Good Ship Goldstone’ was manned by a crew of three. There was a Hila Jalani, a Desmond Travers and a Christine Chinkin. Except for Travers, they were all connected to the Institute for International Criminal Investigations (IICI) and none thought it important enough to disclose the fact. They worked together, were able to influence each other, and might have approached the job with a common mindset. Whether that actually happened or not is unimportant. A fact-finder, like a jurist has to be of independent mind. How otherwise shall he collect facts and not opinions? A mere hint of prior influence must render a fact-finder unfit for the job.
The Honourable Sir Gerard Brennan AC KBE would have disqualified the crew there and then. Here is the Honourable Knight before the Australian Senate on August 10, 2007:
“There are qualities of character and disposition to be desired in all judges. The supreme judicial virtue is impartiality. Both partiality and the appearance of partiality are incompatible with the proper exercise of judicial authority. The one poisons the stream of justice at its source; the other dries it up.”
But we must hasten to bring before Sir Gerard still graver problems with the crew. He will want the full picture in the event of an appeal. He should know that prior to their appointment by the UN, crew members addressed an open letter to the UN Secretary General, Ban Ki Moon, and Security Council Ambassadors. And here is what they, and others, wrote in that letter:
“As individuals with direct experience of international justice and reconciliation of conflict, we believe there is an important case to be made for an international investigation of gross violations of the laws of war, committed by all parties to the Gaza conflict.” (16, April 2009).
Captain Goldstone, your Honour, with his crew, had come to their conclusions before setting out to find the facts. They had decided already that Israel was guilty and more than that – guilty to a gross extent. If you will allow me, sire, I would like to make an important aside. There was another UN appointee like the crew of the Good Ship Goldstone, except he had Israel’s pre-supposed guilt written in his job title. You may have heard of Professor Dugard. Well, he worked with the title, ‘Special Rapporteur to the UN Commission on Human Rights on violation of Human Rights and International Humanitarian Law in the Occupied Palestinian Territory.’ Amen. But to get back to the crew, your Honour, what do you make of this part of their letter?
“A prompt, independent and impartial investigation would provide a public record of gross violations of international humanitarian law committed and provide recommendations on how those responsible for crimes should be held to account.”
I would commend your Honour to the words, ‘impartial’ and ‘independent’ before reading on.
The crew therefore had already decided, before they set foot on dry land (Gaza, sire) that there had been targeting of civilians. I put it to you, what worth would you give their plea to be trusted as independent and impartial investigators? And what do you make of this part of their letter: “The events in Gaza have shocked us to the core.” Does it not, your Honour, disclose feelings – very strong feelings – which triggered the guilty verdict the crew passed before it gathered the facts?“We urge world leaders to send an unfaltering signal that the targeting of civilians during conflict is unacceptable by any party on any count. The commission should have the greatest possible expertise and authority and: a mandate to carry out a prompt, thorough, independent and impartial investigation of all allegations of serious violations of international humanitarian law committed by all parties to the conflict.”
Oh, they were people for writing letters, your Honour! The crew member Chinkin, a professor at the London School of Economics, signed another, in ‘The Times of London’ on January 11, 2009.
“Israel’s bombardment of Gaza is not self-defence - it’s a war crime. The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence…Israel’s actions amount to aggression, not self-defense.”
Is that the mark of an investigator who claims to be impartial and independent? And look at crew member Jilani, an advocate in her native Pakistan. She seems to be quite a favourite with the UN. Before joining the Good Ship Goldstone, Jilani was a member of the UN’s International Fact-Finding Commission on Darfur, Sudan in 2005. If you recall, her commission returned from that tortured land with the finding that the atrocities did not amount to an ethnic or racially-driven crime. That was a very odd thing to find, your Honour, was it not? Here were Arab militias pitted against African tribes. Here rape and murder were the order of the day. Here tribal victims numbered not in the thousands, but in the hundreds of thousands, and 2.5 million were displaced. Yet Jilani found no evidence of genocide.
The ICC also thought it an odd finding. You will recall, sire, that the court later issued an arrest warrant for Sudan’s president, Omar al-Bashir.
“There are reasonable grounds to believe him responsible for…genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction.”
Not to impose on you more, sire, but the entire crew of the Good Ship Goldstone was quite unfit to go fact-finding for the UN. That same realisation, it would appear, came upon Captain Goldstone, and led him to change his mind. Not one of his crew had the ‘supreme judicial virtue of impartiality’ that you hold above all others. Not one had the right equipment for ‘the proper exercise of judicial authority’. They went to Gaza with their minds made up, they went with feelings of disgust for the already guilty party. The whole vessel, sire, was corrupted, and ought never to have sailed.
Now to that credo held dear by every true-blooded anti-Zionist: ‘The Jew cannot be innocent’. The Good Ship Goldstone left a wake in which the credo dipped and bobbed and even now floats, half forgotten. Quite how to dispose of the wreckage no one knows; it seems destined to drift to a final resting place in UN archives.
But the credo stood the disaster well, as it stood the hoax massacre well. Amnesty International will not settle for anything but a crime, while it wanders around looking for corpses that the Jews (a clever lot) were able to hide. And here is Prof Dugard, taking his cue from Amnesty, adhering to the ‘Jew cannot be innocent’ credo.
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HRC''s guilt finder Dugard. Would not allow Goldstone to change his mind
“Goldstone could not possibly have meant that Israel did not “intentionally target civilians as a matter of policy” in the legal sense of intention. That Israel’s assault was conducted in an indiscriminate manner with full knowledge that its consequences would be the killing and wounding of civilians is a matter of public record fully substantiated by the Goldstone report and other, equally credible findings.” (Posted on ‘The New Statesman’, April 6. 2011).
The statement is filled with pointers. To begin we may extract the credo – and a perfect specimen it is. Dugard is angry with Goldstone for claiming that the Jews were innocent after all. They had not killed civilians with deliberate intent. Goldstone could not possibly have meant that, Dugard insists. The Jews cannot be innocent. Only scratch deeper and something will be found to make them guilty. Dugard finds that something quickly enough: Israel was guilty in ‘the legal sense’. He is in no doubt that it set out to kill civilians – in that sense. And what is that sense but the three boxes. My readers will know the boxes (Se "David & Goliath Syndrome" in my blog)
We are back then to our three boxes. Which of the three did Israel not tick every time it killed a civilian? That is the legal sense, to make a charge of war crimes stick. But Dugard will not say. Even for a professor of IHL the devil is in the three boxes. But the ‘public record’ will do for a proxy. The burden of proof, in his law texts, is lighter when Jews are being tried. Forget the boxes and look at the public record. But where is the public record to be found, ‘fully substantiated?’ ‘Where!’ laughs Dugard. ‘In the Goldstone report - read what I wrote.’ So we go back to Captain Goldstone and his change of mind. He had found no proof that the Jews had done the deed. In words that have but one meaning, the captain tells us that the finding was wrong - false. He retracts it completely: the Jews had not deliberately killed innocent people.
His co-members do not concur, but we know who there are. By now, in any case, the professor has blocked his ears, and for proof of the crime he refers back to the Goldstone report, and to ‘other, equally credible findings’.
That was a second pointer - a feeling about Jews can upturn the balance of even the best of minds. Here is a law professor, piqued into making a statement that would bemuse a class of undergrads. A report of an unsubstantiated crime, rubbished by the author himself, can be treated as a credible document of the crime. Did not Amnesty say it like that? If a corpse is not found it only goes to prove that there was a crime.
But there is a third lesson to be taken from Dugard’s stetement. We must remember that he worked for many years with a job title that presumed crimes had been committed. The Goldstone fact-finders went to Gaza under the same presumption. They went to hear about the crimes which the UN had already told them Israel committed. They went to gather facts to support the guilty verdict. For Dugard this was the normal way of dealing with Israel. His reports to the UN were written on that basis; they contained ‘facts’ to support a verdict already passed.
Then along came Captain Goldstone, effectively telling the world that facts gathered did not support the UN mandate. In other words, the mandate was a libel against the Jews – a lie. Hence Goldstone’s lament: “I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of even-handedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.” That should have worried Dugard more than Goldstone’s about turn. What extension might thinking people make to the biased mandate under which he worked? For years had he not perhaps been making false and libelous claims to support the guilty verdict in his mandate?
But we must let the law professor finish what he wants to say.
We know those three other members well – avid letter writers all, and people who could not wait to set foot in Gaza but were already pronouncing on Israel’s guilt. And the one unable to admit to a Muslim regime’s genocidal war – we know her too. Should we wonder that they did not share Captain Goldstone’s misgivings? Should we wonder at their urgent impulse to find the Jews guilty?“Goldstone does not, like his critics, describe his op-ed piece as a retraction of the Goldstone report. This is not surprising. Richard Goldstone is a former judge and he knows full well that a fact-finding report by four persons, of whom he was only one, like the judgment of a court of law, cannot be changed by the subsequent reflections of a single member of the committee.This can be done only by the full committee itself with the approval of the body that established the fact-finding mission – the UN Human Rights Council. And this is highly unlikely, in view of the fact that the three other members of the committee – Professor Christine Chinkin of the London School of Economics, Ms Hina Jilani, an advocate of the Supreme Court of Pakistan, and Colonel Desmond Travers, formerly an officer in the Irish Defence Forces – have indicated that they do not share Goldstone’s misgivings about the report.”