The March 28 debate on the Goldstone Report at Stanford University Law School may have had a significance beyond the substantive discussion, because Justice Richard Goldstone was in attendance and, three days after the debate, published his now-famous recantation in the Washington Post.
Set forth below, with permission, are the Opening Statements made at the debate by Peter Berkowitz and Avi Bell, followed by the Rebuttal prepared by Berkowitz with respect to the speakers who spoke in favor of the Report. The yellow highlighting is mine.
The Berkowitz and Bell statements are worth reading not only for their devastating analysis but also, given the time and place in which they were made, for the fact that some believe that they may have impacted Goldstone’s subsequent action.
1. Peter Berkowitz: Opening Remarks (as prepared for delivery):
Introducing a recent book on the Goldstone Report, progressive journalist Naomi Klein reaffirmed the conventional wisdom. I quote:
A sprawling crime scene. That is what Gaza felt like when I visited in the summer of 2009, six months after the Israeli attack. Evidence of criminality was everywhere — the homes and schools that lay in rubble, the walls burned pitch black by white phosphorous, the children’s bodies still unhealed for lack of medical care. [emphasis added]
But was evidence of criminality everywhere? Evidence of violence, destruction, civilian suffering, yes. But evidence of crime?
Klein equates harm to civilians and civilian objects in war with criminal conduct. And, she assumes that fault automatically falls upon the invading army. Not, say, on fighters dressed as civilians taking up positions in densely populated areas. There is, however, no foundation for Klein’s equation or assumption in international humanitarian law, the law of armed conflict. Yet the Goldstone Report, and tonight Noura Erakat and Victor Kattan, encourage the conventional wisdom’s false equation and specious assumption.
The Goldstone report’s gravest finding, the takeaway heard around the world, was that the strategy guiding Israel’s Gaza operation was itself unlawful. The report did not deny the legitimacy of Israel’s purpose in Operation Cast Lead; stopping the 12,000 rockets and missiles — every one a war crime — that for eight years Palestinians in Gaza rained down on civilians in southern Israel. Nevertheless, the report found that Israel launched “a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability” (1690).
In October 2009, a month after his report’s publication, Justice Goldstone publicly acknowledged that “If this was a court of law, there would have been nothing proven.” But that’s not how the Goldstone Report reads. Or was read. Certainly not by legions of international human rights lawyers progressive intellectuals, and mainstream journalists.
Consider now three of the Goldstone Report’s fundamental flaws.
First, the report gathers and analyzes evidence improperly. It largely relies on Palestinian testimony, even though Hamas viciously punishes dissent. And, the report’s critical legal findings turn on factual findings about the intentions in battle of Israeli commanders and soldiers. But Israel refused to cooperate. It was under no legal obligation. And it had plenty of reason, amply confirmed by the Goldstone Report’s fundamental flaws, to suspect any undertaking initiated by the incurably compromised UN Human Rights Council. Without access to crucial facts about Israeli understandings and intentions, the reports damning legal findings were inherently defective.
Second, the Goldstone Report failed to accurately characterize Hamas. The report ignores or downplays Hamas’s ideology and Charter—they call for Israel’s destruction; Hamas’s “overall terrorist strategy”; its “enforced Islamization” of Gaza; and the flow from Iran through Egypt’s Sinai Peninsula into Gaza of rockets and missiles for attacking Israeli civilians.
Third, the Goldstone Report misapplies the principles of distinction and proportionality, the very cornerstones of international humanitarian law.
The principle of distinction requires combatants to distinguish fighters and military objects from civilians and civilian objects, and to target only fighters and military objects. It also requires combatants to distinguish themselves from civilians — combatants must wear uniforms, carry arms openly, and not hide in civilian areas. Israeli commanders and soldiers faced extremely difficult targeting decisions because Hamas fighters flagrantly violated the principle of distinction. They dressed as civilians; hid weapons in and around homes, schools, hospitals, and mosques; and booby-trapped neighborhoods. The proper legal test is whether a reasonable combatant in the actual circumstances would believe that the target is being used to make an effective contribution to military actions. The Goldstone Report failed to obtain information about the understanding and intent of Israeli combatants. Nor did it carefully investigate Hamas’s systematic use of ostensibly civilian objects for military purposes—which causes those objects to lose their immunity. Therefore, the report’s many conclusory legal findings that Israel failed to properly distinguish civilians and civilian objects are inherently invalid.
The principle of proportionality requires that parties refrain from attacks in which expected harm to civilians and civilian objects will be excessive in relation to anticipated military advantage. Proportionality is highly context sensitive. It involves reasonableness. It depends on factual findings about what fighters knew and intended; on complex assessments of tactics, strategy and precautions; and on the soundness of instant judgments in life and death situations. The Goldstone Report routinely ignores—or proceeds in the absence of -- such legally essential considerations. That vitiates its sensational legal findings.
In sum, the Goldstone Report is deeply flawed. If left uncontested and uncorrected, its errors will increase the dangers to which civilians and lawful fighters are exposed. The report seeks to rewrite international humanitarian law by shifting responsibility for civilian losses away from terrorists and entirely onto the states exercising their inherent right to self-defense. This shift perversely rewards terrorists who, in gross violation of the laws of war, strive to obscure the distinction between civilian and military. And this shift perversely punishes liberal democracies such as Israel and the United States who seek to uphold the distinction.
If the Goldstone Report approach prevails, liberal democracies will face a legal climate (as you are hearing tonight) that increasingly denies or criminalizes the exercise of their inherent right to self-defense. In the short term, liberal democracies may expose their own soldiers and civilians to greater danger. In the long term, however, liberal democracies may be impelled to abandon international humanitarian law as hopelessly impractical. That would be unfortunate. It would undermine their soldiers’ sense of justice and honor, and expose the other sides’ civilians to greater peril.
The Goldstone Report should be studied carefully, but not for the reasons commonly supposed. It should serve as a potent reminder that international law lawyers, like other actors, have biases and blind spots; can distort facts and manipulate law; often lack the expertise in military affairs necessary to properly apply the law of armed conflict to the complex circumstances of asymmetric warfare; and operate unconstrained by democratic accountability and national security responsibility.
International law—in particular the UN Charter, Article 2.7; Fourth Geneva Convention, Article 146; Rome Statute, Article 17 — assigns to states with willing and able judicial systems, that especially means liberal democracies, the primary responsibility to investigate war crimes allegations against them. The Goldstone Report’s many and varied failings illuminate the wisdom of this critical feature of international law.
Some supporters of the Goldstone Report are idealists. The idealists believe that international law crystallizes humanity’s considered judgments about morality and war. The idealists believe that international institutions, and the men and women who operate them, embody a form of transnational, or global, governance that operates above the fray of nation-state power politics. And the idealists believe that to advance the cause of international peace and security, critical judgments about the lawful conduct of war should be taken out of the hands of nation-states—where, in the first instance, international humanitarian law puts them—and assigned instead to international institutions.
Encouragement to so rewrite international law comes from powerful trends in American universities and law schools. For more than a generation, professors have been cultivating in their students the view, which animates the Goldstone Report, that international institutions are more capable than nation states—including liberal democracies—of forming rational and moral and lawful judgments.
That view is idealistic. To a fault. It is suited to a world in which all nation-states incline to peace and already govern themselves in accordance with liberal and democratic principles. Unfortunately, that’s not the world in which we live. Nor is it a world we can expect to emerge anytime soon.
2. Avi Bell: Opening Remarks (as prepared for delivery):
When the Goldstone Report came out, the second in command of the Palestinian Hamas terrorist organization was elated. Mousa Abu Marzook said that “all paragraphs in the Goldstone Report convict Israel and totally exonerate Hamas from any misconduct” and he thanked the organizations and countries that supported the Goldstone Report.
Israelis across the political spectrum, by contrast, viewed the Report as a frontal attack on Israel’s legitimacy. Nobel peace laureate Shimon Peres berated the Report for its “complete disregard [of] the facts and reality.” Even B’Tselem, an organization which devotes itself to criticizing the Israeli government for alleged human rights violations in the West Bank, rejected the Report’s unwarranted anti-Israel conclusions.
The Washington Post editorialized that the Report made a “mockery of impartiality with its judgment of facts.” The Economist condemned the Report as a “deeply flawed” “thimbleful of poison.” Harold Evans wrote in the Guardian that Justice Goldstone “was suckered into lending his good name to a half-baked report … [that] won the gold standard of moral equivalence between the killer and the victim.”
How did the Report go so wrong? How did it hand a victory to a terrorist organization, while assaulting a democratic state and the rule of law?
Unfortunately, in ten minutes, I cannot fully answer that question. The Report is so error-filled that I cannot even list the types of errors in the short time allotted to me.
I have to restrict myself today to discussing only a single issue: bias.
Justice Goldstone himself acknowledged that the mandate for his Mission, as adopted by the Human Rights Council, was “stacked against Israel,” was contained in a “biased, uneven-handed resolution” and called for “a one-sided investigation.” Justice Goldstone tells us that for this reason he had an ex parte discussion with the then-president of the Council to make up a different mandate that was never brought to a vote. Whatever we are to make of this strange admission of procedural irregularity, it is appalling that the Goldstone Mission chose to conduct exactly the kind of one-sided, biased investigation that Justice Goldstone condemned.
Paragraph 16 of the Report tells us that the Mission only investigated 36 incidents, and that it presented those incidents as illustrative of the overall legality of actions in the war. Every single one of the 36 incidents involves claims of Israeli wrongdoing. Not a single one – not one – of the 36 incidents investigated by the Mission involved wrongdoing by the terrorist group Hamas.
The New York Times and Corriere della Serra reported that Hamas unlawfully used Shifa hospital as a military base, making the patients human shields. But paragraph 468 of the Report tells us that the Mission refused to investigate these crimes.
Numerous contemporary news reports described Hamas combatants unlawfully fighting in civilian dress, hiding behind civilians while fighting, and using mosques and other protected sites to store weapons. But the Mission refused to include any of these crimes among the 36 incidents it investigated, and it reported in paragraph 460 that it refused to “form an opinion on the exact nature or the intensity of combat activities carried out by [Hamas] in urban residential areas.”
The bias of the Report didn’t end at its refusal to investigate Hamas’s war crimes. The bias pervaded the entire Report. The Goldstone Mission applied a double standard to both the facts and the law.
The Mission endorsed every single one of the 36 accusations against Israel that it “investigated.” It reached this conclusion by claiming that every piece of evidence that favored Israel or disfavored Hamas was false, while every accusation against Israel or excuse for Hamas was true.
I searched for variations of the word “credible” in the Report and found 30 paragraphs in which the Report found witnesses either “credible” or not “credible.” In 26 of the 30 cases, the Report found Palestinian claims against Israel “credible” and in none did it find Palestinian witnesses not “credible.” By contrast, I found 4 paragraphs in which the Report ruled Israeli claims not “credible,” and not a single instance of an exculpatory Israeli claim being deemed “credible.”
Similarly, I searched for the word “reliable” and found 2 Israeli claims not “reliable” and none “reliable,” while 15 Palestinian anti-Israel claims were “reliable” and none not “reliable.”
And physical evidence? I searched for “photograph” and found 10 paragraphs where the Mission considered photographic evidence. In eight instances the photographs were considered reliable; they were considered to corroborate anti-Israel charges. In two instances, the photographs were considered unreliable; they would have corroborated charges against Hamas.
The result is that when it came to the 36 incidents, the Goldstone Report adopted the most outrageous accusations as true. Consider the Report’s accusation that Israel destroyed Gaza’s al-Bader flour mill with missiles from air strikes and Apache helicopters. Not only have two Israeli investigations concluded that Israel fired no missiles at the flour mill, Israel has released aerial photos demonstrating that the roof of the mill was still intact several days after the alleged air strikes.
But conjuring up a phantom attack was not enough for the Mission. It added in paragraph 933 that the aim of the imaginary air strike “could only have been to destroy the local capacity to produce flour” and in paragraph 937 that Israel was guilty of war crimes because “the destruction of the mill was carried out for the purpose of denying sustenance to the civilian population.”
What evidence supported this monstrous accusation? None. Instead, read the Report’s fine print, and specifically paragraph 25, where it tells us that the Mission found Israel guilty by presuming its guilt, denying it a presumption of innocence, and by refusing to abide by basic evidentiary requirements like the required criminal standard of proof.
Shockingly, even after distorting the evidence in this way, the Mission still found it necessary to distort the law as well.
Just as it whitewashed inconvenient facts, the Mission refused to consider laws that would shine a bad light on Hamas. Consider, for instance, that the Mission not only refused to acknowledge the extensive international law on terrorism contained in treaties such as the International Convention for the Suppression of Terrorist Bombings, and in Chapter VII Security Council Resolutions such as 1373, the Mission managed to write a nearly 600-page report without ever admitting that Hamas carried out unlawful acts of terrorism or that it is, according to international law, a terrorist organization.
By contrast, there was almost no accusation against Israel too remote or speculative to be entertained by the Mission. Parroting without reflection or investigation anti-Israel propaganda claims concerning everything from police conduct and the system of justice to zoning law, the Mission even bizarrely accused Israel of infringing Palestinians’ right to clothing (in paragraph 1302).
In other cases, the Mission acknowledged the laws of war and of human rights, but twisted them beyond recognition.
Consider, for instance, the Report’s claim that members of Hamas had their rights to political association violated by denial of funding on the basis of their affiliation with the terrorist organization.
Or consider the Report’s claim that Hamas’s internal security force, an armed unit tasked with engaging in combat operations, is actually a group of civilians immune from attack.
Or that an attack against that armed force which resulted in a 10:1 ratio of combatants killed to civilians and which properly aimed at those combatants somehow violated the law of proportionality.
None of these understandings of the law would be considered within even the realm of plausibility if Israel were not the accused.
But the Goldstone Report is not just a tragedy for the people of Israel who are defamed by it and made into targets for abusive legal processes around the world.
It is not just a tragedy for the families of those murdered by Hamas — like my friend Dr. David Appelbaum who was murdered by a Hamas terrorist bomber along with his daughter Nava and five other patrons at the Hillel café three blocks from my house — and who were deemed utterly unworthy of notice or mention by the Goldstone Mission.
It is not just a tragedy for the authors of the report whose reputations are now irreversibly sullied alongside those they libeled.
It is a tragedy for those who love justice and who see it trampled underfoot by this Report.
It is a tragedy for those who love truth and who see it distorted by this Report.
And it is a tragedy for those who saw such promise in international institutions to advance human rights, but instead see those institutions destroying and undermining basic human rights, abandoning victims, and glorifying their murderers.
Before closing, I must remark that after I received and accepted from the International Law Society an invitation to appear here tonight, I discovered that the event is co-sponsored by an organization bearing the Orwellian and offensive name “Students Confronting Apartheid by Israel.” This is rather like co-sponsoring an event on terrorism and the law with a so-called 9/11-Truther organization. I regret the organizers’ lapse of judgment in inviting such a group to be co-sponsor.
3. Peter Berkowitz: Rebuttal (as prepared for delivery):
For international law to be legitimate, just, and indeed law, it must be general, uniform, and impartial. It mustn’t make mere paper promises. It must equally protect and equally obligate. It must be enforced consistently. It can’t have one set of rules for some nations and groups, and another set for other nations and groups.
But (contrary to Noura Erakat) international human rights lawyers, and international legal institutions do not apply international law impartially, equally, consistently. They apply special, indeed indefensible, standards to Israel.
Take the United Nations Human Rights Council. It’s a subsidiary body of the General Assembly, and it authorized the Goldstone Report. But the investigation of a country accused of war crimes, before that country has had a chance to conduct its own investigations, is highly unusual. Indeed, the very Goldstone mission is of questionable legal validity. That’s in part because it interfered with Israel’s duty to carry out its own investigation. The UN Charter, the Fourth Geneva Convention, and the International Criminal Court all recognize that it is, in the first instance, the responsibility of countries with willing and able legal systems, to investigate war crimes accusations. Yet the Human Rights Council passed a resolution demanding an investigation of Israel even before the guns fell silent in Operation Cast Lead.
Journalist Anne Bayefsky reports that, “the UN Human Rights Council has adopted more resolutions and decisions condemning Israel than all the other 191 UN member states combined.” Why is that? 70% of all condemnatory resolutions passed by the UNHRC have concerned Israel. Why is that? By comparison, the UN Human Rights Council, which has been in existence since 2006, never adopted a single resolution on Egypt. Why is that? All the world seems now to agree that Mubarak was a ruthless dictator. Nor has the Human Rights Council adopted a single resolution on China, Cuba, Iran, Saudi Arabia, Zimbabwe, flagrant human rights violators all. Why is that?
That said, Israel recognizes it obligation to honor the law. I believe that the evidence shows that to an unprecedented degree in the annals of warfare, Israel sought in the Gaza conflict to comply with the laws of war.
Noura Erakat and Victor Kattan have a major objection. They contend that Gaza is occupied. And because the laws of occupation, they argue, are incompatible with the exercise of military force, Israel’s response to Hamas in Cast Lead was illegal and so is the blockade of Gaza.
They are wrong. Gaza is not occupied. It’s true that Gaza became dependent on Israel in a variety of ways as result of the almost 40 years that Israel did exercise effective control over it. And it’s true that Israel controls borders and air space, electricity and water. But occupation requires “effective control.” Under international law, “effective control” involves two elements: 1) military force in place on the territory, and 2) the occupying power performing the functions of government.
As for element number 1, no Israeli troops are in Gaza. As for element number 2, it would come as news to Hamas that Israel performs the functions of government in Gaza. As anybody can see, Hamas governs Gaza.
Ask Hamas officials whether they are in a state of armed conflict with Israel. They’ll tell you, yes. If they are speaking to you in English, rather than Arabic, they may equivocate or dissimulate. In that case, consult Hamas’s Charter. It proclaims, “Israel will exist and will continue to exist until Islam will obliterate it” (Preamble). “Hamas strives to raise the banner of Allah over every inch of Palestine” (Article 6). “There is no solution for the Palestinian question except through Jihad” (Article 13). And then there are the 12,000 rockets and missiles rained down on Israeli civilians for 8 years; the 40,000 rockets and missiles with which Hamas has restocked its arsenal in the last two years; and Hamas’s refusal to recognize Israel, renounce terror, or honor agreements entered into by the Palestinian Authority.
Finally, Noura Erakat and Victor Kattan ask you to consider the wider political context. They are right, but fail to take their own exhortation seriously enough. To consider the wider context means to understand why Israel must maintain constant vigilance, and be prepared at every moment to exercise its inherent right to self-defense. Here’s the wider context: The Islamic Republic of Iran continues to encourage and equip Hamas for violent jihad against Israel. And Hamas remains dedicated to raising the banner of Allah over every inch of Palestine.