Haaretz, Sept. 27, 2009
By Benjamin Pogrund
At least three times in his life, Richard Goldstone has gone against prevailing wisdom in taking on challenging jobs. Two were in apartheid South Africa - and he was brilliantly successful in both. The third, his Gaza inquiry, has brought down the coals of hell upon his head.
During the first three decades of apartheid, many judges were appointed because of their loyalty to the Afrikaner government. One result was a decline in the quality and status of South African courts. In response, the government sought to appoint some liberal lawyers of quality. Most, however, were reluctant to join the bench because it meant applying apartheid laws.
Some accepted: Goldstone, who made his name as a barrister in nonpolitical commercial cases, became a Supreme Court judge in 1980. The next year, far from merely applying the law, he handed down a judgment that struck at the heart of a basic apartheid law - the Group Areas Act, which had split the entire country into different areas where people of different races were respectively compelled to live and work, and displaced hundreds of thousands of people of color.
Goldstone ruled in favor of an Asian woman appealing against eviction from her home, and said she first had to be provided with alternative accommodation. His startling judgment ended such evictions.
His second challenging job came in 1991. Apartheid was winding down and the country was beset by violence, in which thousands were killed. A mysterious "Third Force" of government agents was rumored to be behind the killings. President F.W. de Klerk asked Goldstone to head a commission to investigate the terrible violence. Goldstone accepted - and ran it like no other commission before: Over three years, he issued 47 reports, revealing horrendous details about murder squads set up and funded by the government.
Gaza has been Goldstone's latest challenge. He again accepted a mandate from a poisoned source: the UN Human Rights Council in Geneva. I have no doubt that he acted with the best of intentions, as he has his entire life, first in South Africa and then in the world, to ensure justice be done. But I also believe that this time, his decision is open to question.
First, Goldstone underestimated the Human Rights Council's malevolence toward Israel. Most members harbor deep hatred for Israel, and wish for no less than its destruction. Goldstone should have been warned off by the refusal of several people before him to accept the job, including former Irish president Mary Robinson.
Second, he accepted the council's mandate, even though it had declared in advance that Israel was guilty of war crimes in Gaza. It is not enough that the council's chairman later said the mandate could include Hamas: Apart from the fact that this statement does not bind the council, his findings on Hamas will mean little or nothing in practice because the organization is not a recognized government and is beyond international action. Israel is the council's target and Goldstone has delivered it. His report has more strength because he is a Jew and enjoys international status.
Third, rejecting objections, he allowed Prof. Christine Chinkin to remain a member of his four-person commission even though, back in January, she had already publicly found Israel guilty, referring to its "prima facie war crimes" in Gaza. Goldstone thus seriously, even fatally, undermined the commission's credibility, and in doing so raised questions about his own good sense.
Fourth, the nearly 600-page report includes many pages of descriptions and allegations of Israeli oppression at home and on the West Bank. That is valid if the intention is to provide a context for Israel's actions in Gaza. But then it must be done properly, with careful research and assessments for a fair presentation of the mix of history, religion, culture and politics that make up the complex situation, including both good and bad. The report does not show that knowledge and understanding; instead, time and again, it's Israel that is bad, bad, bad.
Fifth, the report follows the usual line pursued by members of the council and Israel's other enemies - treating Israel as though it were a unique source of evil instead of examining Gaza in the light of experience elsewhere, in places such as Afghanistan, Iraq and Pakistan, where the military has taken on terrorists in a civilian setting.
Richard Goldstone is now under savage attack from many in the Jewish world. Right-wingers have gone berserk, with outpourings of hysterical condemnation. More measured criticism has come from Susan Rice, U.S. ambassador to the UN, who said there were "very serious concerns about many of the recommendations in the report," and U.S. State Department spokesman Ian Kelly, who criticized the report for its "cookie-cutter conclusions" about Israel's actions, while it limited its comments on "the deplorable actions of Hamas to generalized remarks."
But Kelly also urged Israel to further investigate IDF actions in Gaza. And that indeed is what Israel should do. I believed last December and still do that Israel was justified in going into Gaza. But I remain uncertain and uncomfortable about exactly what Israel did and why it did it. Was white phosphorous used over civilian areas? If so, why? What about the early killing of scores of policemen? What about reports that rescue parties were blocked from reaching the wounded, civilians carrying white flags were killed while fleeing and human shields were used? Why were journalists kept out?
The IDF says emphatically that it behaved correctly, but it is not enough for it to investigate itself. An independent investigation is needed - and the obvious person to head it is former Israeli Supreme Court president Aharon Barak, who would give it strength and status, at home and abroad. Israelis need it for their own moral peace of mind, or if wrong was done, to recognize and to address it. Israel needs to be certain that it can tell Goldstone and other critics that their accusations are skewed and unjustified.
Benjamin Pogrund, a former South African journalist, first reported on Richard Goldstone 48 years ago.
Source: Haaretz (http://www.haaretz.com/hasen/spages/1116945.html).