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What Justice Goldstone Knew and When He Knew It

On April 1—the same day Justice Richard Goldstone confessed in the Washington Post that “if I had known then what I know now, the Goldstone Report would have been a different document”—Peter Berkowitz released “The Goldstone Mess,” an article in Policy Review that persuasively debunks the report.

To begin with, Berkowitz’s essay shows decisively that the Goldstone Report was inherently invalid, based on what Goldstone knew at the time.

Goldstone misapplied the key principles of “distinction” and “proportionality.” The principle of “distinction” requires combatants to target only military personnel and assets and to distinguish themselves by wearing uniforms, carrying weapons openly, and not conducting military operations from civilian areas:

Israeli commanders and soldiers faced extremely difficult targeting decisions because Hamas fighters, in violation of the law of armed conflict, dressed as civilians; hid ammunition, rockets, and missiles in civilian buildings, including schools, hospitals, and mosques; and booby-trapped neighborhoods. The [Goldstone] report concludes that much of the damage caused by Israeli military operations to civilians and ostensibly civilian objects in Gaza involved criminal conduct on Israel’s part, but it does not apply the proper legal test. The proper legal test asks whether a reasonable commander in the actual circumstances under scrutiny would believe that the target is being used to make an effective contribution to military actions. (Italics added)

The principle of “proportionality” recognizes that civilian casualties and damage are not inherently illegal, but must be weighed in light of the military situation:

[A] determination of whether the exercise of force was proportional depends on factual findings about what the commander and his soldiers knew and intended, on complex calculations about tactics and strategy, on the care with which decisions were made, on the prudential steps and precautions taken, and on the propriety of sometimes instant judgments in life and death situations. Suffice it to say that the Goldstone Report routinely ignores such legally essential considerations, which vitiates its sensational legal findings. (Italics added)

In other words, since he did not investigate Hamas’s systematic use of civilian dress, civilian shields, and civilian buildings, Goldstone could not possibly draw any conclusions about what a reasonable Israeli commander would do, and his legal findings were thus inherently invalid. Based upon what he knew, he had no basis whatever to indict Israel.

On the other hand, Hamas made no secret of its “policy.” It had fired thousands of rockets from Judenrein Gaza into Israel—each rocket a war crime. Israel’s Gaza operation was a defensive war—a response to provocation undertaken long after any other state would have responded, using less force than any other state would have used. The Goldstone Report’s call upon Hamas to investigate itself was ludicrous not simply because the Islamist terrorists would never do so, and had no judiciary or free press to pressure or compel them to do so, but also because they unashamedly pleaded guilty. Hamas’s military efforts did not simply neglect the quaint concept of “distinction.” They were founded upon a defiance of it.

Goldstone presumed Israel guilty until it proved itself innocent, which Israel did with lengthy reports prepared before, during, and after the issuance of his report. But even before he learned “what I know now,” Goldstone should have known his report grossly misapplied the proper legal test.

What makes Berkowitz’s demolition of the report even more interesting—perhaps of historical importance—is that he and Avi Bell participated in a Stanford debate on March 28 with Goldstone in the audience, and “The Goldstone Mess” is an expanded version of Berkowitz’s opening statement that night. After the debate, as both Ron Radosh and Stanley Kurtz have suggested, Goldstone may have known what he had to do.



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