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The Debate that Changed Goldstone's

Mind?Four days before Justice Richard Goldstone's shocking retraction on Israeli war crimes, I heard him

waver.

BY ABRAHAM BELL | APRIL 6, 2011

Just four days before Justice Richard Goldstone's shocking admission that his controversial report on Israeli

war crimes committed during the 2008-2009 Gaza war was flawed, I participated in a panel debate with him at

Stanford Law School. During the debate, Goldstone repeated one of his standard talking points -- that none of th

factual accounts in his report had been challenged. But then, under pressure from a line of argument, he backed

off and acknowleged, perhaps for the first time, that some of the facts in the Goldstone Report were in dispute.

And he suggested that his report might have been different had his fact-finding mission had access to Israeli

evidence.

Four days later, Goldstone published his mea culpa op-ed in the Washington Post-- an admission of fault he had

reportedlybeen unwilling to make in a draft op-ed submitted to the New York Times less than a week beforethe debate. In thePostarticle, Goldstone wrote, "If I had known then what I know now, the Goldstone Report

would have been a different document." But he went further still, acknowledging that his report was wrong to


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allege that Israel had deliberately targeted civilians.

I can only speculate about Goldstone's discomfort at having his professional work challenged in such sharp terms

-- and whether the debate in some way precipitated his admission of fault. But the criticism was deserved. The

Goldstone Report asserted that the Gaza war was an Israeli assault on the "people of Gaza as a whole ... aimed at

punishing the Gaza population for its resilience." Choosing to focus on 36 specific incidents involving alleged

Israeli wrongdoing, the report gave Hamas a free pass for most of its war crimes while concluding that Israel's

campaign "was 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."

Peter Berkowitz and I represented the side challenging the Goldstone Report against Palestinian panelists Noura

Erakat and Victor Kattan. Goldstone participated as a "discussant," speaking for 10 minutes at the beginning and

end of the debate, but he kept a stone face during the two-hour back-and-forth.

Berkowitz and I focused on evidentiary problems, such as the report's refusal to credit any exculpatory Israeli

evidence, even photographs. We highlighted the discrepancies between the legal standards applied by the

Goldstone Report and those required by international law, such as the report's insinuation that any collateral

damage to civilians constitutes a war crime.And we noted the disturbing tone of the report, which employed

inflammatory language against Israel, while treating Hamas so tenderly that it never once, in the course of its 575

pages, acknowledged that Hamas is a terrorist organization under international law, that it had carried out suicide

bombings, or that it explicitly seeks the destruction of the state of Israel.

Goldstone's retraction addresed some of these points: that the allegations were not based on evidence of Israeli

motives, but, rather, on his team's presumptions in the absence of any hard evidence -- a point we made

repeatedly in the Stanford debate. Goldstone also admitted that Hamas is "an organization that has a policy to

destroy the state of Israel" and that Hamas should be called to account for its violations of the laws of war. Finally,

Goldstone noted that the U.N. Human Rights Council, which commissioned the report, has a "history of bias

against Israel [that] cannot be doubted," and he denounced the council's refusal to address "heinous" acts by

Hamas against Israelis.

The motivation for Goldstone's about-face is still unclear; what is not is that his contrition is far from complete.

The Goldstone Report was full of disturbing accusations against Israel and no-less-disturbing omissions of

Hamas's crimes; it distorted the factual record and digressed into vile anti-Israel propaganda. Goldstone has not

yet disavowed these sections of the report. While Israelis are delighted by the measure of vindication, President

Shimon Peres expressed the sentiments of many when he opined the weekend after Goldstone's op-ed appeare

that Goldstone still owes the state of Israel an apology. In many respects, the report's damage to Israel's

reputation and the attendant boost to Hamas's legitimacy are irreversible.

Nonetheless, Goldstone's disavowal of the central anti-Israel allegation of the report is sure to have some positive

effect.

The most immediate effect will be on international campaigns by the Palestinian leadership and anti-Israel

activists to haul Israeli officials into criminal court for their actions during the Gaza war. Just a few weeks ago, the


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U.N. Human Rights Council adopted a resolution co-drafted by the PLO that called for International Criminal

Court prosecutions of Israelis on the basis of the report. Activists have sought to arrest former Israeli Foreign

Minister Tzipi Livni, Peres, and other senior and junior Israeli officials like David Benjamin, a reservist attorney

in the Israel Defense Forces, for crimes "proved" by the Goldstone Report. Efforts to prosecute Israelis will no

doubt continue. Senior Palestinian figures like PLO Secretary-General Yasser Abed Rabbo have furiously

denounced Goldstone's mea culpa, and a news release from the spokesman for Palestinian Authority President

Mahmoud Abbas insisted that Goldstone's remarks "do not change the fact that Israel committed a massacre andwar crimes in Gaza." But the legal campaign will likely now lose momentum.

A second possible result of the Goldstone op-ed could be that the public will learn to be more skeptical about

future claims of Israeli wrongdoing. Like most international human rights organizations that deal with Israel,

Goldstone's team treated allegations as sufficient evidence of wrongdoing. Terrorist groups like Hezbollah and

Hamas have learned to exploit this practice by providing human rights groups with sympathetic "witnesses"

telling tales of woe about fictional Israeli monstrosities. Tragically, wars produce a lot of perfectly legal destruction

and death, and distinguishing lawful from unlawful violence is extremely difficult after the fact. Without physical

evidence, which is often lacking, such tales can be impossible to verify or disprove.

When challenged about their reliance on such poor evidentiary standards, many human rights organizations

prove defensive.After theEconomistobserved that the Goldstone Report had failed to provide evidence of key

anti-Israel findings, Kenneth Roth, director of Human Rights Watch, respondedthat "Richard Goldstone's

charge that Israel implemented a deliberate and systematic policy to inflict suffering on civilians in Gaza is ... the

conclusion of the report, arrived at after a serious examination of the evidence." Now that Goldstone has come

clean, perhaps the public will learn that often what are presented as "conclusions" are, in fact, little more than

accusations.

What Goldstone's newfound forthrightness will not do, however, is bring about a rebirth of the peace process. Th

Middle East is in upheaval, the Palestinian Authority is currently boycotting talks, and, thanks in part to the

Goldstone Report, Israeli doves are discredited. The Israeli left had justified Israel's 2005 unilateral withdrawal

from Gaza on the "pragmatic" grounds that greater Palestinian freedom would lead to better relations with Israel

and that the international community would support Israel if it needed to defend itself in the case that things

didn't go as planned. Hamas's takeover of the Gaza Strip in 2007 disproved the first argument. The Goldstone

Report in 2009 helped bury the second.

The Israeli electorate will not easily be convinced to withdraw from the West Bank on the basis of such arguments

in the future. Goldstone may have reversed his support for his report's central anti-Israel calumny, but he cannot

reverse the lessons taught to the Israeli people from this unsavory episode. Israel's right has successfully taken

advantage of the public mood that the Palestinians are uninterested in peace and that the rest of the world is

unwilling to extend Israel fair treatment or hold Palestinians to account for criminal behavior. If the Palestinian

Authority ever decides to return to peace negotiations, it will be greeted by an Israel that has learned to be

skeptical of the international community's promises of fairness and support.

I spoke to Richard Goldstone and his wife for several minutes before the debate, but I did not see him leave. His

subsequent op-ed came as a pleasant surprise -- a rare event in the context of the Arab-Israeli conflict. It may be a


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while before the next one.

Save big when you subscribe to FPFABRICE COFFRINI/AFP/Getty Images

Abraham Bell is a professor of law at the University of San Diego School of

Law and Bar-Ilan University Faculty of Law.

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