Wednesday, 28 August 2019

The trials - and tribulations - of Judge Richard Goldstone

My review of "The Trials of Richard Goldstone" by Daniel Terris appears in the edition of the Jerusalem Report of September 9, 2019

        In The Trials of Richard Goldstone Daniel Terris, a friend and admirer, provides us with an in-depth account of a remarkable career.

     Goldstone, 80, is a third-generation South African who was born into a Jewish family in Boksburg, near Johannesburg.

        In the book we follow, and are helped to understand, the events and circumstances that led to the emergence of a towering figure in international jurisprudence. As Goldstone’s legal career progressed in his native South Africa, where he combatted and helped defeat apartheid from within the system, and as chief prosecutor for the UN in bringing the Bosnian Serb political and military leaders to justice, he proved himself a dedicated advocate of human rights and an unwavering upholder of international humanitarian law. Terris both describes and explains the challenges that Goldstone faced along the way, and the principles that informed his many decisions – principles that evolved over the course of his career, and have become his legacy.

        Then late in the story, when he was already past 70, came the débacle of the Goldstone Report, a pivotal episode in his life and in his career. Terris describes the episode with scrupulous honesty. Under the auspices of the United Nations Human Rights Council (UNHRC), a five-person fact-finding team was set up to look into the events of the Israel-Hamas conflict in Gaza in 2008-9, known as Operation Cast Lead. Goldstone agreed to lead it. Despite his best efforts to paint a balanced picture, lack of access to an Israeli version of events and a consequent over-reliance on accounts from partisan sources, resulted in a report perceived on all sides to be a searing indictment of Israel’s conduct of the conflict.

        When published, the effect of the Goldstone Report on his personal and professional life was devastating. He was reviled across the Jewish world, to the point where he was not only refused an Aliyah on his grandson’s barmitzvah, but only narrowly escaped being refused entry to the synagogue. Equally mortifying, perhaps, was the triumphalist use made of the report by Israel’s enemies.

        It is well known that, a couple of years later, Richard Goldstone published an article in the Washington Post containing the key sentence: “If I had known then what I know now, the Goldstone Report would have been a different document.” His partial retraction of the report’s conclusions was condemned at the time as “too little, too late”, and in a sense this was true. Yet Terris also highlights the reactions of some in the human rights world who applauded Goldstone’s moral courage in acknowledging when mistakes had been made. “Heroism of the first order”, one editorial called it.

         Surveying the episode from start to finish, Terris identifies the one fundamental misjudgement that might have averted the whole traumatic affair. Goldstone had been warned, and he ought to have realized, that when he accepted the UNHRC’s mandate, his report would be used as a weapon to delegitimize Israel.
        In refusing to co-operate, Israelis in government and military circles knew only too well how partisan the UNHRC was. In 2009 it was just three years old. It had been set up with one over-riding purpose – to rectify the egregious faults of its predecessor body, the UN Commission on Human Rights (UNCHR). That organization had been disbanded because of the raft of objectionable practices it had accrued over the years, not least of which was its compliance with being used as a platform from which selective targets, but in particular Israel, could be condemned and vilified.
        Unfortunately, the change of organization made virtually no difference in this respect. The new Council, its membership heavily weighted against Israel, had issued more condemnatory resolutions against Israel than against the rest of the world combined. In 2007 this policy had culminated in a decision to include, as a permanent feature of each of its three annual sessions, a review of alleged human rights abuses by Israel – a scrutiny extended to no other nation, whatever its human rights record.

        The dangers in accepting a brief from the UNHRC should have been instantly apparent to Goldstone from the blatantly biased terms of the remit it originally offered him: “to investigate all violations of human rights law and the laws of war by the occupying power, Israel, against the Palestinian people in Gaza.”

        It is no surprise that Goldstone refused to accept such a brief. When it was presented to him he said: “I would need to be assured that the investigation would be even-handed,” asking specifically whether he would be permitted to take into account the indiscriminate rocket fire from Gaza into Israel. Eventually, with the approval of Martin Uhomoibhi, the Nigerian president of the UNHRC, Goldstone himself drafted the remit to which his mission worked: “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations in Gaza in 2008-2009, whether before, during or after.”

        Yet Goldstone must surely have been aware that adjusting the remit was not enough to ensure even-handedness for his report. He must have known that, once it had been presented to the UNHRC, he would have no control over how it would be interpreted or used. Deeper reflection about the UNHRC’s offer and its possible consequences might have led him to reject it, and thus have spared him, his friends, colleagues and family, a great deal of anguish. Unfortunately, as he himself must realize, his name will always be linked to that episode.

        Despite, but perhaps also because of, the Goldstone Report incident, Daniel Terris leaves us in no doubt that Richard Goldstone is a very great man indeed. Throughout a long and distinguished legal career, says Terris, he has abided steadfastly by three core principles: holding to account those responsible for inflicting suffering; equality before the law – in South Africa, for example, he bore down equally on the apartheid regime and wrong-doing by the ANC; and an abiding belief in the importance of international institutions, especially perhaps the UN despite its faults.

        Was it this last deeply-held belief that over-ruled the wiser judgement he might have made, back in 2009?

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