The Unifying Factor: Understanding the “Goldstone Report”

Why Richard Goldstone

The subjective biases that most media outlets are accused of is often the result of their respective audiences who rather have their beliefs confirmed rather than informed.

That being said the dichotomous coverage of the Goldstone report seems to reflect this trend. Either Goldstone is an “evil evil man” as Alan Dershowitz recently stated on Israeli Army radio (01/31/10) or as his daughter Nicole argues, he is a genuine Zionist who loves Israel (Israel Army Radio, 11/16/09). Richard Goldstone had a stellar human rights reputation as a constitutional judge in post-apartheid South Africa, and was the chief prosecutor for both the international criminal tribunals addressing Rwanda (ICTR) and the Former-Yugoslavia (ICTY).

A fundamental question that is often overlooked in this toxic debate is why did the notoriously anti-Israel United Nations Human Rights Council (UNHRC) handpick Goldstone to lead an “independent” investigation into the “Second Gaza War”? Could a Jew be trusted to deal objectively with the only Jewish country, could Goldstone really give Hamas a fair trial? While many argue that it was to create the illusion of legitimacy, the question remains, why was the HRC so certain that Goldstone would return with an anti-Israel verdict?

Gaza and International Law
One way to unravel Goldstone's conceptions of human rights is to apply them to a concrete scenario that reflects a common theme in the larger human rights conversation.

In the Gaza conflict the point at issue revolved around instances when Israel attacked locations used by civilians, for example the UN funded school. The legal question is: "Is it justifiable to intentionally target the school when “militants” use it as a base for firing rockets?" This issue is covered in International Law, specifically the Rome Statute; the founding document for the International Criminal Court (ICC).

In the ICC’s Elements of Crime (2002), specifically those provisions covered in articles 6, 7, and 8, “War crime of willful killing”, is comprised of five elements. The first element is, “The perpetrator killed one or more persons” (p.14). In a foot note the term “killed” is “interchangeable with caused death” In Article 8 (2) (a) (i). Amongst other connotations, this implies that causing a death is akin to willfully killing.

This definition effectively ignores context. The immediate concern is that without integrating specific definitions that take context into account, how can courts possibly make rational decisions? After all, most of us can distinguish between killing in self defense and premeditated murder, how then can international law ignore such important and obvious distinctions?

Intent for Results

Regardless of this obvious flaw in the reasoning this highlights the conceptions that Goldstone propagates. Civilian deaths are wrong, even if there is no evidence of “intent” or “willfulness”. The very fact that civilians could be there, as they have been there in the past, is grounds for not targeting the area, period.

But what is at the heart of this argument? Is Goldstone’s argument that we cannot “know” one's intent and thus intent is irrelevant?

In other words, even if, contextually speaking, Israel did drop fliers and made hundred of thousands of personal calls, we can never “know” Israel’s intent. Perhaps Israel’s real intent was to cover up their crimes?! Thus Goldstone and international law contends that it is the results that count not the intent; context is irrelevant as its consideration implies an evaluation of intent.
Of course, Goldstone's argument is Kantian in nature and anti-utilitarian in practice (the ramifications of which require a completely separate analysis).

This is part of the same trend that asserts the moral equivalency between Israel, a Democratic nation, and Hamas, a theocratic/terrorist regime. That Hamas openly declares its intention of killing and maiming as many Israeli’s as possible while Israel makes, apparently, unprecedented efforts to prevent civilian casualties, is immaterial! The results of Hamas targeting civilians, and Israel targeting militants shooting indiscriminately, are the same, civilians are killed.

Objective Law

However this analysis does not in itself expose Goldstone's thought process. What is at stake here, Goldstone implicitly argues, are universal human rights which require an “objective” foundation, rules that declare killing (human rights in general) as wrong. Because if there is no one universal and absolute truth, i.e. “killing is wrong”, then how can international community prevent the advent of the Hitler or Stalin who develop subjective intent-based arguments to justify the worst atrocities.

We on the other side must question the International community. Are they justified in ignoring real contextual issues in order to prevent even larger Human rights abuses? Can intent never be evaluated based on context, after all most laws are? Finally for the Israeli, the Jew, and the man with moral clarity the question is should Israel be the first and only target of the impractical ideologies of the international community? Yet these pointed questions can only be asked after understanding Goldstone.

For those that dispute the relevance of this analysis, consider that the Goldstone report is unique only so far as its mandate; its underlying reasoning and conclusions are as old as Israel itself. Perhaps, by understanding Goldstone on his terms we, the Jewish community, can be better prepared for the inevitable repeat of the Goldstone phenomenon.