The Goldstone Report and the Political Misuse of Human RIghts Standards

by

Joel B. Pollak

Decalogue Society Legal Education Lecture

Wednesday, January 26, 20111

Introduction

! On Monday, March 14, 2011, at the University of California-Berkeley, Justice

Richard J. Goldstone will receive an “ethics award” from the left-wing Tikkun magazine.2
The award will honor Goldstone for his role in leading the United Nations “fact-finding”
mission on the war in Gaza that took place between the State of Israel and the
Palestinian Hamas in December 2008 and January 2009 (known in Israel as “Operation
Cast Lead”).3
! The “fact-finding” mission submitted a 575-page report, popularly referred to as
the “Goldstone Report,” to the UN Human Rights Council in Geneva on September 29,
20094--though Goldstone took the unprecedented step of releasing it two weeks earlier
in the full glare of the media in New York, without giving either Israeli or Palestinian
diplomats an opportunity to review its contents. The Goldstone Report made the
sensational accusation that Israel had committed “war crimes” and “crimes against
humanity,” and that Israelʼs military and political leaders had deliberately attacked
civilians and civilian infrastructure with the aim of “creating maximum disruption in the
lives of many people as a...means to achieve not only military but also political goals.”5

1 I am grateful to Mitchell B. Goldberg of the Decalogue Society for his kind invitation and support.
2 Tikkun Invitation, http://www.tikkun.org/fmd/files/celebration_registration.pdf (last visited Jan. 25, 2011).
3Natasha Mozgovaya, Goldstone To Attend Grandsonʼs Bar Mitzvah As Zionist Groups End Feud,
HAARETZ, Apr. 25, 2010, http://www.haaretz.com/print-edition/news/goldstone-to-attend-grandson-s-bar-
mitzvah-as-zionist-groups-end-feud-1.284814.
4 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of
the United Nations Fact-Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48 (Sep. 25, 2009)
(prepared by Richard J. Goldstone), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/
12session/A-HRC-12-48.pdf. The official version of the Goldstone Report is the version presented in
Geneva on September 25, 2009, which was re-formatted down to 452 pages. The 575-page version
released in New York on September 15, 2009 is available at: http://www2.ohchr.org/english/bodies/
hrcouncil/specialsession/9/docs/UNFFMGC_Report.PDF. The UNʼs full document archive for the
Goldstone Report is available at: http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/
factfindingmission.htm.
5 Goldstone Report, supra note 3, at ¶ 63.

1
! The Report was almost entirely one-sided, giving scant attention to Palestinian
attacks against Israeli civilians or against each other. It recommended prosecution by
the International Criminal Court, declaring that Israelʼs own legal system is inadequate
to the task of holding its military accountable. Immediately, the Goldstone Report
sparked global outrage against Israel, both in the West and in the Arab world.
! Goldstoneʼs credentials gave the Report particular weight. He had been
appointed by then-South African president Nelson Mandela to serve on that countryʼs
post-apartheid Constitutional Court. He had been the chief prosecutor at the war crimes
tribunals for the former Yugoslavia and for Rwanda. And, crucially, he is a Jew who had
maintained connections within Israel, including a post on Hebrew Universityʼs Board of
Governors.6
! In explaining Tikkunʼs decision to recognize Goldstone, Rabbi Michael Lerner
stated: “[T]he peace community both in Israel and around the world see Justice
Goldstone as upholding the best ethical values of the Jewish community.”7 That view
affirmed the consensus among international human rights organizations, such as
Human Rights Watch, which demanded that the United States endorse the Goldstone
Report in its entirety.8
! Yet the Goldstone Report is discredited by its factual, legal, and procedural flaws.
Its immediate consequence was to encourage Israelʼs enemies to launch new attacks in
violation of international law.9 And it has fatally undermined the moral pretensions of the
UN Human Rights Council while damaging the worthy cause of human rights in general.
To understand the full scale of that damage, it is necessary to examine not only the
flaws of the Goldstone Report itself, but also the ethical fallacy behind it, which violates
not only “the best ethical values of the Jewish community” for which Goldstone is being
honored, but the ethical foundation of the very doctrine of human rights itself.

6Some of these connections were severed, amidst the great public controversy that followed the Report.
See Abe Selig, Goldstone Stripped of Honorary Hebrew U Fellowship, JERUSALEM POST, June 5, 2010,
http://www.jpost.com/Israel/Article.aspx?id=177529.
7 Mozgovaya, supra note 2.
8Press Release, Human Rights Watch, US: Endorse Goldstone Report on Gaza (Sep. 27, 2009),
available at http://www.hrw.org/en/news/2009/09/27/us-endorse-goldstone-report-gaza.
9 The Gaza flotilla incident of May 2010 is an example. Hamas, in apparent cooperation with Turkeyʼs
governing party, dispatched civilians, together with combatants, on boats bound for Gaza for the explicit
military purpose of running an Israeli blockade. That is a war crime according to international law, yet the
international community treated Israel as if it had violated international law when it intercepted the boats
and when its troops defended themselves from attack by some of the passengers on the final vessel.

2
Factual errors

! The factual errors of the Goldstone Report have been well-documented, notably
by Anne Bayefsky of the Hudson Institute,10 Ambassador Dore Gold of the Jerusalem
Center for Public Affairs, and many others.11 They have also been rebutted by the Israeli
government itself.12 The central claim of the Report--that Israeli leaders deliberately
killed as many Palestinian civilians and did as much damage to Palestinian civilian life
as possible--is completely unsupported in the Goldstone Report. Astonishingly, the only
evidence Goldstone provides as to Israelʼs intent are selective quotes from the Israeli
media and similar sources.
! The Goldstone Reportʼs most graphic passages describe alleged Israeli attacks
against civilians seeking shelter and attempting to surrender. Israel has investigated
many of these allegations and concluded that many did not happen. Some have been
referred for further investigation and prosecution by the Israeli authorities. And others
involve targets that were in fact military in nature. The Goldstone Report refused to
accept Israelʼs claim that 1,166 pepole were killed and that of these, 709 were known
Hamas operatives. Since then, Hamas has admitted that roughly 700 of those killed
were combatants and not civilians, which supports Israelʼs initial claim.13
! Israel also used leaflets, telephone calls, text messages, and a warning shot
called “roof knocking”--a small explosion on the roof of a building--to warn civilians
about impending air strikes and attacks. The Goldstone Report dismisses these
measures as inadequate, yet Colonel Richard Kemp (Ret.) of the British Army has
described them as the most ambitious attempt in history to reduce civilian casualties.14
The Goldstone Report also claims that Israel targeted civilian infrastructure, including
agriculture and sewage systems, as a form of “collective punishment” against
Palestinians. Yet subsequent investigation revealed that Palestinians had used civilian

10Bayefsky has compiled a comprehensive set of resources criticizing the Goldstone Report at The
Goldstone and Tomuschat Reports: The UN Blood Libel, http://www.eyeontheun.org/view.asp?
l=47&p=982 (last visited Jan. 25, 2011).
11Gold debated Goldstone at Brandeis University on November 5, 2009. Video and other materials are
available at the website of the Jerusalem Center for Public Affairs, http://jcpa.org (last visited Jan. 25,
2011).
12See STATE OF ISRAEL, MINISTRY OF FOREIGN AFFAIRS, THE OPERATION IN GAZA: FACTUAL AND LEGAL
ASPECTS (2009), https://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/
GazaOperationwLinks.pdf; also see STATE OF ISRAEL, MINISTRY OF FOREIGN AFFAIRS, GAZA OPERATION
INVESTIGATIONS: AN UPDATE (2010), http://www.mfa.gov.il/NR/rdonlyres/8E841A98-1755-413D-
A1D2-8B30F64022BE/0/GazaOperationInvestigationsUpdate.pdf.
13Alan Dershowitz, Finally, A Hamas Leader Admits That Israel Killed Mostly Combatants in Gaza,
HUFFINGTON POST, Dec. 17, 2010, http://www.huffingtonpost.com/alan-dershowitz/finally-a-hamas-leader-
ad_b_798429.html.
14Maurice Ostroff, Behavior of Israeli soldiers, http://maurice-ostroff.tripod.com/id199.html (last visited
Jan. 25, 2011).

3
infrastructure to attack Israeli forces, and that in some cases Hamas probably destroyed
civilian infrastructure deliberately to stop the advance of Israeli forces.15
! The Goldstone Report also falsely accuses Israel of suppressing political
dissent--not just in Palestinian areas but in Israel itself, and not just during the Gaza
conflict but at all other times. Yet it is beyond dispute that Israel protects freedom of
expression of all kinds, and that it did not suppress non-violent protest against the war,
though there were some violent clashes in the West Bank both prior to and during the
war.16
! The Goldstone Report also distorts the facts about Hamas. It claims, for
example, that there is no conclusive evidence that Hamas used human shields in Gaza,
dismissing the claims of Hamas leaders themselves that they did so. The Goldstone
Report also claims that the Hamas-controlled police force in Gaza was a civilian target,
ignoring the reality that there is no practical distinction between Hamasʼs military and
civilian wings, between Hamas as a terror group and Hamas as the de facto
government of Gaza. The Report makes the absurd claim that Hamas did not use
mosques, hospitals, schools and UN facilities in the war. The mission ignored or
dismissed ample photographic, video, and eyewitness evidence, plus widespread news
reports at the time, that Hamas was in fact using these civilian facilities--and the
civilians in them--for military purposes.
! When it comes to the thousands of rockets fired by Hamas and other terror
groups at Israeli civilians, the Goldstone Report allows that “it is plausible” that these
attacks were carried out to target and terrorize Israeli civilians.17 The Report refuses to
acknowledge the fact that killing and frightening Israeli civilians was, and remains, the
sole and explicit purpose of these rocket attacks.
! The Goldstone Report briefly considers human rights violations committed by
Hamas and its rival faction, Fatah, against each other. However, it overlooks the fact
that both Hamas and Fatah are committed to the destruction of Israel,18 and that both
encourage hatred of Jews in their propaganda.

15See, e.g., STATE OF ISRAEL, MINISTRY OF FOREIGN AFFAIRS, GAZA OPERATION INVESTIGATIONS: AN UPDATE
(2010), supra note 10, at ¶¶ 142-174.
16 See, e.g., Haaretz Service, Palestinian ʻSantasʼ Do Battle With Israeli Security Forces Over West Bank
Fence, HAARETZ, Dec. 26, 2008, http://www.haaretz.com/news/palestinian-santas-do-battle-with-israeli-
security-forces-over-west-bank-fence-1.260329. There are continuing concerns about the methods Israeli
troops use to disperse crowds at demonstrations, which sometimes involve live ammunition. However,
non-violent protest is not suppressed as a matter of policy, and the fact that demonstrations in the West
Bank sometimes degenerate into violent attacks against Israeli troops is well-documented.
17 Goldstone Report, supra note 3, at ¶ 1689.
18Fatah was reported to have revised its charter several months after the Gaza conflict to remove
“negationist” language against Israel. See, e.g., New Fatah Charter Omits Language on Israelʼs Demise,
JEWISH TELEGRAPHIC AGENCY, Jan. 27, 2010, http://jta.org/news/article/2010/01/27/1010372/new-fatah-
charter-omits-negationist-language. However, the charter still calls for the “liberation” of Palestine, “free
and Arab.” See PALESTINE NATIONAL LIBERATION MOVEMENT (FATAH) [Charter], available at http://
www.fas.org/irp/dni/osc/fatah-charter.pdf.

4
Evidentiary bias

! The factual distortions in the Goldstone Report are the outcome of its pervasive
evidentiary bias, a pattern that has been deconstructed extensively by Alan Dershowitz
of Harvard Law School,19 as well as by Trevor Norwitz of Columbia Law School.20 There
are five basic problems. The first problem is the type of evidence admitted. Much of the
documentary and testimonial evidence is hearsay--often anonymous hearsay--and
uncorroborated by other evidence. The second problem is the manner in which
evidence was submitted. Most of the testimony occurred over two weeks in Gaza,
where Goldstone admitted that Palestinian witnesses testified under duress, and that
many of them were reluctant to discuss Hamas. The judges themselves were reluctant
to ask witnesses about Hamas, and Goldstone later admitted that he had been afraid of
being kidnapped in Gaza.21 A climate of intimidation and fear is not conducive to
fairness or accuracy.
! A third problem with the evidence is the clear bias of the sources to which
Goldstone and his colleagues turned for background information. The Report relies
heavily on input from individuals and organizations that oppose Israelʼs policies and/or
its very existence. Fourth, the Goldstone Report examined evidence in ways that were
highly prejudicial, such as broadcasting “victim” testimonies--a first for any UN inquiry.
As Norwitz notes: “It hardly bears mentioning that any probative value of these
interviews (particularly when they tell only one side of the story and, as [Goldstone]
acknowledge[s], were tainted by duress) does not justify the inflammatory effects of
televising them before the Report is issued.”
! The fifth and final problem is the way in which Goldstone and his colleagues
chose to weigh the evidence. As Dershowitz notes:

Since intentionality, or lack thereof, was so important to the report's

conclusions, it would seem essential that the report would apply the same
evidentiary standards, rules and criteria in determining the intent of Israel
and in determining the intent of Hamas.

Yet a careful review of the report makes it crystal clear that its writers
applied totally different standards, rules and criteria in evaluating the intent
of the parties to the conflict. The report resolved doubts against Israel in
concluding that its leaders intended to kill civilians, while resolving doubts
in favor of Hamas in concluding that it did not intend to use Palestinian
civilians as human shields.

19
See Alan Dershowitz, THE CASE AGAINST THE GOLDSTONE REPORT: A STUDY IN EVIDENTIARY BIAS, http://
www.alandershowitz.com/goldstone.pdf (last visited Jan. 25, 2011).
20
See Trevor Norwitz, AN OPEN LETTER TO RICHARD GOLDSTONE, Oct. 19, 2009, http://
www.commentarymagazine.com/viewarticle.cfm/an-open-letter-to-richard-goldstone-15284.
21
Yitzhak Benhorin, Goldstone: I Was Afraid of Being Abducted in Gaza, YNET, Nov. 6, 2009, http://
www.ynetnews.com/articles/0,7340,L-3801132,00.html.

5
 Moreover, when it had precisely the same sort of evidence in relation to
both sides - for example, statements by leaders prior to the
commencement of the operation - it attributed significant weight to the
Israeli statements, while entirely discounting comparable Hamas
statements. This sort of evidentiary bias, though subtle, permeates the
entire report.22

Goldstone blamed Israelʼs refusal to participate in the fact-finding mission for some of
the evidentiary gaps in the Report.23 However, as Norwitz notes, it was inappropriate for
the fact-finding mission to call attention to Israelʼs non-participation repeatedly and to
draw negative inferences from it: “[I]f [the] investigation was truly seeking to uncover the
truth, [it] quite simply could not have reached conclusions and made such momentous
and awful accusations based on one-sided evidence.” 24

Legal errors

The Goldstone Report also relies on false legal premises.25 Chief among these is
the contention that Gaza remains “occupied,” despite Israel’s total military and civilian
withdrawal in 2005. Israel’s “blockade” of Gaza--legal under international law, and part
of an international sanctions effort--is also described, erroneously, as a form of
“collective punishment” rather than an attempt to prevent Hamas from importing
weapons and materials for manufacturing them.
The Report also takes as given the incorrect (and non-binding) verdict of the
International Court of Justice in 2004 that Israel’s security barrier (or “wall,” though it is
almost entirely a fence) in the West Bank is illegal. The barrier is, in fact, legal under the

22
Alan Dershowitz, The Case Against the Goldstone Report, JERUSALEM POST, Jan. 28, 2010, http://
www.jpost.com/Opinion/Op-EdContributors/Article.aspx?id=167069.
23The Gold/Goldstone Debate, http://www.solomonia.com/blog/archive/2009/11/the-goldgoldstone-
debate/ (Nov. 6, 2009).
24 Norwitz, supra note 18.
25 The most controversial legal allegations about Israelʼs actions in Gaza concern the doctrine of
“proportionality.” Under international law, a military action is not “disproportionate” simply if there are a
great many more casualties on one side than the other. Proportionality is determined in relation to the
military objective sought. As the Report correctly notes, proportionality means “weighing the military
advantage to be gained against the risk of killing civilians.” Goldstone Report, supra note 4, at ¶ 42.
However, the Report frequently misapplies the law by assuming--without adequate proof or investigation--
that Israel did not have an adequate or legitimate military objective in the examples under consideration.
(Indeed, the Goldstone Report presumes Israeli leaders deliberately acted disproportionately. Supra, note
5; see also Goldstone Report, supra, note 3, at ¶ 1215.) Moreover, by dismissing Israeli claims about the
percentage of combatants among the Palestinians killed, the fact-finding missing essentially concluded,
erroneously, that Israelʼs entire operation was “disproportionate.” See Goldstone Report, supra note 5, at
¶ 362. For a more detailed discussion of proportionality and the Gaza conflict, see AMICHAI COHEN,
JERUSALEM CTR. FOR PUBLIC AFFAIRS, PROPORTIONALITY IN MODERN ASYMMETRICAL Wars (2010), http://
www.jcpa.org/text/proportionality.pdf.

6
self-defense provisions of Article 51 of the UN Charter.26 The Goldstone Report also
cites Israel for violating customary international law by using white phosphorus, even
though it acknowledges that the use of white phosphorus is not actually illegal. (White
phosphorus is, in fact, used by every major military to illuminate battlefields. Its use was
made particularly necessary during the Gaza conflict to help Israeli forces distinguish
civilians from the Hamas combatants hiding among them. There are questions as to
whether the Israel Defence Force used white phosphorus appropriately, but its use is
not illegal per se.)
Finally, the Goldstone Report also claims, erroneously, that Israel discriminates
against Arabs, both in the West Bank and Israel. There is no legal discrimination against
Arabs in Israel, and measures cited by the Report in the West Bank that are used to
separate Israelis from Palestinians (not Jews from Arabs) on roadways are the result of
decades of Palestinian terror attacks against civilians in both the West Bank and Israel.

The mandate

In reviewing the degree to which the Goldstone Report is wrong on the facts
about Israel, wrong on the facts about Hamas, wrong in its evidentiary bias, and wrong
about the basic underlying international laws and norms, it is impossible not to notice
the sheer breadth of issues the fact-finding mission addressed. It did not limit itself to
the Gaza war, but considered the entire Israeli-Palestinian conflict--and beyond. That is
the result of the mission’s mandate, provided in Human Rights Council Resolution
S-9/1. The resolution was proposed by Cuba, Egypt, and Pakistan--those great
exemplars of human rights--on January 9, 2011, in the midst of the conflict. The relevant
paragraph calls for

an urgent, independent international fact-finding mission, to be appointed

by the President of the Council, to investigate all violations of international
human rights law and international humanitarian law by the occupying
Power, Israel, against the Palestinian people throughout the Occupied
Palestinian Territory, particularly in the occupied Gaza Strip, due to the
current aggression, and calls upon Israel not to obstruct the process of
investigation and to fully cooperate with the mission...27

That resolution, absurdly one-sided, not only presumes Israel’s guilt but also Israel’s
failure to cooperate. It is more than just a one-sided prejudgment; it is also an attempt to
achieve military gains for Hamas by turning the war in Gaza into a question of Israel’s
position elsewhere and the very legitimacy of its self-defense against terror.
The chair of the fact-finding mission was initially offered to Mary Robinson, the
former UN High Commissioner for Human Rights. Yet she refused to lead the mission,

26See Ruth Wedgwood, The ICJ Advisory Opinion on the Israeli Security Fence and the
Limits of Self-Defense, 99 AM. J. INTʼL L. 52 (2005).
27 H.R.C. Res. S-9/1, ¶ 14, U.N. Doc. A/HRC/S-9/L.1 (Jan. 9, 2009).

7
noting: “...the Human Rights Council passed a resolution seeking a fact-finding mission
to only look at what Israel had done, and I don’t think that’s a human rights approach.”28
Goldstone, however, not only accepted the appointment eagerly; he also
apparently campaigned for the job, though he later claimed to be “shocked” by the
appointment.29 On March 16, 2009, he co-signed an open letter to UN Secretary-
General Ban Ki-moon, calling on the UN to investigate “gross violations of the laws of
war” which the signatories presumed to have occurred.30 Goldstone was given the post,
along with two of his co-signatories--Hina Jilani of Pakistan and Colonel Desmond
Travers of Ireland--who joined him in prejudicing themselves as to the outcome.31 The
fourth judge, Christine Chinkin, signed a letter to the Times of London during the conflict
itself, in which she declared that “the manner and scale of [Israel’s] operations in Gaza
amount to an act of aggression and is [sic] contrary to international law.” 32 Goldstone
later admitted that Chinkin would have been disqualified if the fact-finding mission “had
been a judicial inquiry.”33 Nevertheless, he did not ask her to step down--and his fact-
finding mission arrived at judicial conclusions regardless.
Goldstone knew that he and his fellow judges were biased. He and his family
actually claimed later that he had taken the job to help Israel.34 That itself is grounds for
his disqualification, true or not. He also knew that his mandate was fatally one-sided,
and claimed that he had changed the mandate to cover Palestinian conduct as well, in
accord with the president of the Human Rights Council. Yet neither of them had the
authority to do so without a vote of the full council--meaning that Goldstone had himself
acted contrary to international authority.

28Why Mary Robinson Rejected the Mandate Accepted by Judge Goldstone, http://blog.unwatch.org/
index.php/2009/07/02/why-mary-robinson-rejected-the-mandate-accepted-by-judge-goldstone/ (Jul. 1,
2009).
29U.N. Appoints Gaza War-Crimes Team, BBC NEWS, Apr. 3, 2009, http://news.bbc.co.uk/2/hi/
middle_east/7981538.stm.
30 I wrote to Goldstone after reading the open letter and asked him to explain why he signed it. He
responded that “an independent and even-handed inquiry into the Gaza events is necessary and in the
interests of peace in the Middle East.” When I replied that it seemed clear that Israel had acted in
conformity with international law against an enemy who had not, Goldstone replied: “you are assuming
the truth of facts that are very much in issue.” The full correspondence is posted at: Richard Goldstone
Must Recuse Himself, http://guidetotheperplexed.blogspot.com/2009/04/03-april-2009-richard-goldstone-
must.html (Apr. 3, 2009).
31Press Release, Amnesty International, Gaza Investigators Call For War Crimes Inquiry, (Mar. 16, 2009),
available at http://www.amnesty.org.au/news/comments/20572/.
32
Christine Chinkin et al., Letter to the Editor, Israelʼs Bombardment of Gaza Is Not Self-Defence--Itʼs a
War Crime, TIMES, Jan. 11, 2009, http://www.timesonline.co.uk/tol/comment/letters/article5488380.ece.
33Brandeis Debate: Did Goldstone Admit UN Colleague Chinkin Was Biased?, http://blog.unwatch.org/
index.php/2009/11/06/brandeis-debate-goldstone-admits-un-colleague-chinkin-was-biased/ (Nov. 6,
2009).
34Haaretz Service, Goldstoneʼs Daughter: My Fatherʼs Participation Softened UN Report, HAARETZ, Sep.
16, 2009, http://www.haaretz.com/news/goldstone-s-daughter-my-father-s-participation-softened-un-gaza-
report-1.7776.

8
Goldstone’s philosophy of justice

Why did Goldstone do it? Theories about his personal motivations abound,
including the claim that he wished to use the post to attain the office of High
Commissioner for Human Rights or even UN Secretary-General. Others detect a
pattern of careerist behavior in Goldstone’s past--whether enforcing the unequal justice
of the courts of apartheid South Africa,35 or grandstanding at the Yugoslavia tribunal.36
Whatever merit these explanations may have, I want to veer away from critiques that
might be considered ad hominem attacks. Instead, I would like to focus on Goldstone’s
philosophy of justice, as it emerges from his own experiences and statements. That
philosophy has implications for our understanding of the Goldstone Report, as well as
Jewish ethics and the ethics of human rights law in general.
Goldstone was first appointed to the bench in South Africa, at the height of the
apartheid era. As the details of his judicial record have come to light, Goldstone has
defended his decisions--which included enforcing the death penalty, and sending black
defendants to jail for political crimes--by saying: “we had to uphold the law of the
country.”37 (Of course, he did not have to accept judicial appointment.)
Ironically, Goldstone began building his reputation as a fair-minded and human
rights-oriented judge by adopting creative approaches to the law of the land. One of his
most celebrated rulings, the Govender case of 1982, effectively ended South Africa’s
era of forced removals by making the Group Areas Act, which mandated residential
segregation, impossible to enforce.38 Goldstone may not have intended that outcome,
as he later wrote: “Little could I have imagined that this opinion would bring to an
immediate stop all prosecutions under the Group Areas Act.”39 Yet it launched
Goldstone’s reputation and career as a jurist willing to push the legal boundaries to
serve the broader cause of justice. Goldstone served on the South African bench at a
time of increasing political turmoil--and political imagination. A generation of lawyers,
judges, and legal scholars, troubled by the increasingly apparent deficiencies of the
legal system they had joined, began to think, write, and argue about the law not as it
was but as it ought to be.
In 1991, Goldstone was appointed by then-South African president F. W. de Klerk
to lead a fact-finding mission--the first “Goldstone Commission”--into ongoing violence

35Tehiya Barak, Judge Goldstoneʼs Dark Past, YNET, May 6, 2010, http://www.ynetnews.com/articles/
0,7340,L-3885999,00.html.
36
R. W. Johnson, Who Is Richard Goldstone?, RADIO FREE EUROPE/FREE LIBERTY, Oct. 20, 2009, http://
www.rferl.org/content/Who_Is_Richard_Goldstone/1856255.html.
37Akiva Eldar, Richard Goldstone: I Have No Regrets About the Gaza War Report, HAARETZ, May 6,
2010, http://www.haaretz.com/print-edition/news/richard-goldstone-i-have-no-regrets-about-the-gaza-war-
report-1.288535?localLinksEnabled=false.
38 S v Govender 1986 (3) SA 969 (T).
39 Richard J. Goldstone, For Humanity: Reflections of a War Crimes Investigator, (2000), at 7.

9
around the country between rival political organizations, particularly among black South
Africans. The commission was prompted by an event known as the Boipatong
massacre, a murderous attack by members of the Inkatha Freedom Party against
members of Mandela’s African National Congress. Goldstone investigated suspicions
that a “third force”--allegedly controlled, armed and encouraged by the apartheid
government--had fomented the violence. The commission is widely credited with helping
to calm some of the political tensions of the time. Goldstone’s critics, however, noted
that he made some allegations in the media about police involvement in the attacks that
were unsubstantiated by the facts and to which the accused officers had no opportunity
to respond.40 Whatever the merits of his findings, Goldstone emerged from the process
with the image and experience of a judge in a “peacemaking” role.
The legacy of the Goldstone Commission secured Goldstone’s appointment to
international war crimes tribunals, as well as to South Africa’s own Constitutional Court.
Yet the experience that most seems to have influenced Goldstone’s approach to the
Gaza war is one in which he did not actually take part directly: the celebrated Truth and
Reconciliation Commission (TRC). The TRC was established in the wake of South
Africa’s transition to democracy to examine the human rights violations committed by all
parties during the country’s political struggle. Those who came forward and testified
about their role in human rights abuses would be offered the possibility of amnesty. For
most South Africans, however, the focus of the TRC was the testimonies of the victims.
These testimonies were were emotionally riveting for the entire country and the world.
They were broadcast, along with the testimonies of those confessing to human rights
violations, so that all South Africans would learn about the injustices that had been
perpetrated in the past, and which had previously been hidden or ignored. Critics of the
TRC charged that it was fashioning a narrative of the past that largely suited the
country’s dominant new political party, even if some members of that party chafed at
having to account for their own misdeeds, arguing that they should not be judged by the
same standards as their former oppressors. Nevertheless, the TRC provided emotional
catharsis for many South Africans and cemented the post-apartheid order.
It is the emphasis on victims in Goldstone’s unfolding judicial career and in the
emerging constitutional norms of his native South Africa--much admired by the
international legal community of which Goldstone was now part--that explains his
approach to the Gaza fact-finding mission and to human rights in general. The
Goldstone Report explicitly states: “[T]he Mission gave priority to the participation of

40 TONY LEON, ON THE CONTRARY: LEADING THE OPPOSITION IN A DEMOCRATIC SOUTH AFRICA 193 (2008):
“Just six weeks before the general election in 1994 [Goldstone] dropped his biggest payload: he released
a report alleging that top South African Police officers had supplied illegal weapons and ammunition to
Inkatha Freedom Party operatives, and alleged that the ʻarchitects of the oppressive system are still in
place.ʼ Extraordinarily for a jurist of Goldstoneʼs eminence, however, he fingered the second-in-command
of the Police, Lieutenant-General Basie Smit, and other top brass by way of a press interview, not by
putting any of the allegations to any of the officers implicated or by charging them in court. Shortly before
the election, Basie Smitʼs daughter...requested an interview with me in our campaign office in Norwood,
Johannesburg. My amazement increased when she arrived the next day with her now infamous father.
He told me he remembered me as ʻstraightforward and honestʼ, and simply wished to state that despite
the seriousness of Goldstoneʼs revelations, he, Smit, had never been asked by Goldstone, or the
Commission, about their veracity of his culpability. When I asked him what he wished me to do with this
information, he responded: ʻI want you to do nothing with it. I simply want you to know.ʼ”

10
victims and people from the affected communities”41; “[T]he Mission has made victims
its first priority and it will draw attention to their plight in the context of the events under
investigation.”42 Goldstone made the same point prior to the beginning of the
investigation in an interview with a Jewish website:

Q: What is this sense of justice that moves you?

A: What moves me is the effect that justice has on victims. It's really the
victims that are the customers, or should be the customers. They are often
forgotten. But justice is for victims, whether it's in domestic courts, or
whether it's in international courts, it's the victims who need the
acknowledgment. And that's what justice gives them. Whether it's
prosecutions or truth and reconciliation commissions, it doesn't matter.
Victims are craving for the public acknowledgment of their victimhood,
what happened to them. And I've seen this time and again in South Africa,
and Rwanda, the former Yugoslavia, and Kosovo--it's a very important
aspect of justice.43

Victims and social justice

But is justice really for victims? If so, how do we determine who is a victim? What
criteria does a judge use when opposing parties claim--as is so often the case--that
each has been victimized by the other? Military strength? Material wealth? Political
power? Are victims always innocent? Or are we simply interested in creating a platform
for victims to tell their stories? Goldstone does not elaborate.
Norwitz is convinced that

a victim-focused investigation is not an appropriate method for

establishing the facts in a conflict such as this. There are undeniably more
victims on the Palestinian side of the conflict, but “draw[ing] attention to
their plight” is not a fact-finding objective. It is a political objective. In some
cases, such as the South African Truth and Reconciliation Commission,
which appears to have been, at least in part, the model for [Goldstone’s]
proceedings, that may be appropriate and very laudable. However, that is
not the job of a fact-finding mission in the midst of an ongoing political
conflict. The question that the honest fact finder should be trying to answer
is not how can I “draw attention to their plight” but whose victims are they?
44

41 Goldstone Report, supra note 3, at ¶ 167.

42 Ibid., at ¶ 136.
43 LEADEL.NET, accessed on Apr. 6, 2009. The interview seems to have been taken down.
44 Norwitz, supra note 18. Original emphasis.

11
There are two fundamentally different concepts of justice here. One, to which Norwitz
alludes, sees justice as fundamentally concerned with rewarding good and punishing
evil. The other sees justice as promoting equality. For the first kind of justice, procedural
fairness and objective truth are indispensable. For the second kind of justice,
Goldstone’s “victim-focused” justice, substantive fairness is more important than
procedural fairness, and broader truths about the world are more important than the
truth of the particular case at hand.
Goldstone’s philosophy of victim-focused justice is closely related to what we
encounter in political discourse as the concept of “social justice.” Social justice
considers inequality to be the primary evil, and judges right or wrong by weak versus
strong, i.e. in relative terms. What widens inequality, or accrues to the stronger party by
virtue of its strength, is inherently bad. What narrows inequality, or compensates the
weaker party by virtue of its weakness, is inherently good.
It is important to distinguish the idea of social justice from the traditional virtue of
charity. Charity is a moral obligation that the poor share as well as the rich--and this is
true both in Judaism and other moral traditions. Even the poorest must give. Social
justice is at best indifferent on this score--the poor are victims, and therefore are the
recipients of the moral obligations of others. They are judged differently. The ultimate
goal of social justice is a world free of inequality or unfairness. In that sense, social
justice is a kind of secular messianism. In contrast, charity envisions continued giving
even in an equal world.
To many Jews today, social justice is the essence of Jewish ethics: “Some people
in our world have more, and some have less, partly because of factors beyond any
individual’s control. The world is not as it should be. It is unequal and unfair. The
obligation of Tikkun Olam requires us to repair the world and narrow the breach.
Equality represents moral fulfillment and redemption.” So the thinking goes.
From that perspective, Goldstone does epitomize Jewish ethics. He is focused
on victims. He appropriately holds the powerful--Israel, in the present case--to a
different and higher standard. He is even--and this is critical--willing to pronounce
judgment against his own people. That proves not just his impartiality but also his
willingness to lead by example, as a person of privilege, to engage in self-sacrifice--or
at least the posture of self-sacrifice.

Judaism and justice

Yet is social justice, in fact, a concept of justice that Judaism embraces? Hillel
Halkin notes that the traditional concept of Tikkun Olam, which emerges from Jewish
law, liturgy, and mysticism, is something other than what social justice advocates
imagine it to be. In fact, Halkin notes, the concept is sometimes used in Jewish law to
correct the unintended consequences of redistributive practices, such as the
forgiveness of debts.45

45
Hillel Halkin, How Not to Repair the World, COMMENTARY, Jul.-Aug. 2008, http://
www.commentarymagazine.com/viewarticle.cfm/how-not-to-repair-the-world-11461.

12
 But let us go straight to the Torah itself, which defines what Jewish justice is, and
the role of the judge in particular. In fact, in the Torah portion for this week, Parashat
Mishpatim, we are given these judicial guidelines (the structural edifice of the judiciary
having been set in place in Parashat Yitro, which we read last week). Exodus 23:3 says:
“Neither shall you glorify a poor man in his lawsuit.”46 This injunction is repeated in the
Torah--not once, but four times. The next iteration comes in Leviticus 19:15: “You shall
commit no injustice in judgment; you shall not favor a poor person or respect a great
man; you shall judge your fellow with righteousness.”
Rashi comments on the latter passage: “You shall not favor a poor man: You
should not say: He is a poor man, and the rich man is obligated to support him, I [the
judge] will acquit him [the poor man] in court and thus he will have income in an
acceptable way [not having to beg for it]. And you shall not honor a rich man: You
should not say: This is a rich man, the son of great people, how can I [the judge]
embarrass him [by ruling against him] and see his embarrassment, there is a
punishment for such things [for embarrassing someone], therefore it says [explicitly]
‘you shall not honor a rich man.’”47 (Or, as John Kass puts it in his column in today’s
Chicago Tribune: “The law, at least, doesn’t care who sent ya.”48)
The Torah and traditional Jewish ethics therefore explicitly reject a philosophy of
justice that considers first where people stand in relation to one another in wealth,
power, or status. Justice is not “for the victims,” according to the Torah--nor is it for the
powerful. It is about rewarding good and punishing evil. The only equality that matters is
equality before the law--and thus it has remained in the Judeo-Christian legal tradition.
One might say, in defense of Goldstone’s victim-focused concept of justice, that
he does not mean we should favor a victim in judgment, only that we should hear the
testimony of the victim and draw attention to it. After all, another version of the Torah’s
prohibition against “recognizing persons” in justice, Deuteronomy 16:19, seems to refer
to the judgment phase of a trial: “You shall not pervert justice; you shall not show
favoritism, and you shall not take a bribe, for bribery blinds the eyes of the wise and
perverts just words.” But both common law and Jewish law recognize that some forms
of evidence may taint judgment and therefore must be excluded. In Deuteronomy 1:17,
the Torah specifically says: “You shall not favor persons in judgment; [rather] you shall
hear the small just as the great; you shall not fear any man, for the judgment is upon the
Lord, and the case that is too difficult for you, bring to me, and I will hear it.”49 The
prohibition applies not just to judgment but to testimony as well.
The Jewish concept of justice, therefore, is concerned with procedural fairness
above substantive fairness. And it is concerned with the truth of testimony, not broader
truths about the human condition. Indeed, it recognizes implicitly that helping the weak

46For translation, I am relying on the ChabadTanakh Online edition, http://www.chabad.org/library/

bible_cdo/aid/63255/jewish/The-Bible-with-Rashi.htm.
47
Avigdor Bonchek, Whatʼs Bothering Rashi?: Parashas Achrei Mos/Kedoshim(66), http://
www.shemayisrael.com/parsha/bonchek/archives/achrei66.htm (last visited Jan. 25, 2011).
48
John Kass, The Law, At Least, Doesnʼt Care Who Sent Ya, CHICAGO TRIBUNE, Jan. 26, 2011, http://
www.chicagotribune.com/news/columnists/ct-met-kass-0126-20110126,0,1229057,full.column.
49 Emphasis added.

13
and hurting the strong might sometimes prompt us to punish the good and reward the
bad. It might require us to ignore the truth of events and to do away with equality before
the law, in the service of an abstract, relative notions of truth or equality. Classical
Jewish ethics therefore emphatically rejects the notion of victim-focused justice, and the
role of the judge as the dispenser of social justice. That is true, broadly speaking, of the
entire Judeo-Christian legal tradition.

The relevance of Jewishness

Our inquiry into Jewish ethics is not just a matter of intellectual curiosity, nor is it
solely of interest to Jewish people. It is relevant because Goldstone’s Jewishness is
itself relevant--indeed, crucial--to the legitimacy of the Goldstone Report in the eyes of
the international community. It is an important reason--in Goldstone’s own words--that
he took the job. The BBC, a reasonable barometer of world opinion, described his
appointment as follows: “The UN Human Rights Council has been accused of singling
out Israel unfairly, and is viewed by some as having less credibility than other parts of
the United Nations. But correspondents say the selection of Mr Goldstone, a respected
South African war crimes prosecutor who is also Jewish, as head of the inquiry has
given it greater clout.”50
In the debate over the Report at the UN General Assembly, member states
repeatedly referred to Goldstone’s religious faith and his personal connections to Israel
as reasons his conclusions should be trusted. The Lebanese representative, for
example, said:

Richard Goldstone identifies himself first and foremost that he [is], and I
quote, ‘A Jew who always his life supported Israel and its people,’ -- end of
quotation -- as he himself wrote in an article in the Jerusalem Post on 18,
October 2009. In point of fact, his daughter Nicole said in an interview
with Israeli army radio on 16 September last, that her father [is], and I
quote, “a Zionist who loves Israel.” End of quotation.51

Dershowitz calls this the fallacy of “proof by ethnic admission.”52 It is logically invalid, yet
devastatingly effective as propaganda. Note that it only works in one direction. The
world does not hail Jews who, out of sheer moral conscience, rise to defend Israel--or
even to judge it impartially. Witness the scorn heaped upon Israel this week for finding
that its response to the Gaza flotilla last May was legal in terms of international law--and
that after an independent, impartial investigation attended by two international
observers!

50Goldstoneʼs UN Inquiry Team Arrives in Gaza, BBC NEWS, Jun. 1, 2009, http://news.bbc.co.uk/2/hi/
middle_east/8076690.stm.
51REPUBLIC OF LEBANON, Statement at U.N. General Assembly, Nov. 4, 2009,http://eyeontheun.org/
developments-item.asp?d=8061&id=11150.
52 Alan Dershowitz, The Case Against Israelʼs Enemies (2009).

14
 The irony is that even as Goldstone was being hailed as a Jew from the floor of
the General Assembly, the member states invoked some of the worst medieval
antisemitic imagery--e.g. Jews deliberately killing children, Israel as a bloodthirsty and
genocidal nation--using the Goldstone Report as a pretext. Many attacked Israel’s very
existence, not just its military policies. And many of these same states are the world’s
worst abusers of human rights. Sudan, of all states, accused Israel of “genocide against
the Palestinian people.”53 Libya called Israel a state “based on genocide, ethnic
cleansing, and collective transfer of Palestinians.” Saudi Arabia, which refuses to adopt
the Universal Declaration of Human Rights, demanded that Israel obey international
human rights norms.54
This antisemitic spectacle of double standards was partly made possible by the
fact that the Goldstone Report is shielded from charges of antisemitism. The Report
also led, indirectly, to the Gaza flotilla incident itself, because the effective consequence
of the Goldstone Report is that Israel has no right to self-defense. Indeed, in the
aftermath of the flotilla incident, Hamas called for a new “Goldstone Report.” 55 The
antisemitic rhetoric of the debate also serves the interests of the repressive regimes
who indulge in it. It allows them to deflect criticism, and to earn undue legitimacy
through high-minded but ultimately meaningless pronouncements on human rights. The
U.S., sadly, compounded the damage with a weak statement in the General Assembly
against the Report, and with a bizarre submission on its own supposed human rights
abuses to the UN Human Rights Council late last year.56

Conclusion

The consequence of the Goldstone Report, and the ethical philosophy behind it,
is that no action taken by Israel to defend itself is legitimate, as long as Israel is
portrayed as “strong” and its enemies as “weak.” That is the philosophical underpinning
of asymmetric warfare--not asymmetry of arms, but asymmetry of judgment. By
extension, the existence of Israel itself is illegitimate, or at any rate impermanent. And
by the same logic, the U.S.--and every other democracy--has no legal right to fight terror
groups that hide among, and target, civilians.
Goldstone has tried to avoid responsibility for these logical consequences. When
asked about the implications of his report for the U.S., for example, he claimed--without
any investigation--that the U.S. “has always taken care to protect innocent civilians.
When innocent civilians have been killed and injured, it hasn’t been because it was
intentional. It may have been negligent, it may even have been, and I don’t know I

53REPUBLIC OF SUDAN, Statement at U.N. General Assembly, Nov. 4, 2009, http://eyeontheun.org/

developments-item.asp?d=8749&id=11916.
54KINGDOM OF SAUDI ARABIA, Statement at U.N. General Assembly, Nov. 4, 2009, http://www.saudi-un-
ny.net/attachments/043_Amb%20on%20Gaza%20En.pdf.
55Hamas Calls For New Goldstone Report, JERUSALEM POST, Jun. 1, 2010, http://www.jpost.com/
MiddleEast/Article.aspx?id=177159
56 UPR of the United States, http://www.youtube.com/watch?v=UuB9UeQJVwM.

15
haven’t looked in to it, it may have been more than negligent but I have no doubt that it
hasn’t been deliberate.”57
That is just one of the ways in which Goldstone has sought to avoid any
intellectual or moral responsibility for the contents and results of the “fact-finding”
mission and the Report. In the document itself, the judges claim that “acts entailing
individual criminal responsibility have been committed,” but in the same paragraph
disavow that claim by acknowledging that their findings do not reach a criminal standard
of proof. Thus the Goldstone Report amounts to an elaborate judicial defamation whose
authors evade accountability and rebuttal, and who instead are praised for their moral
uprightness. The same applies to the countries that voted to endorse the Report--many
of which were careful to note that although they condemned Israel, they did not intend
to create a legal precedent that could be used to scrutinize their own behavior.
Nevertheless, a precedent has been set--not to the disadvantage of the member
states who voted against Israel (though perhaps to their citizens), but to the detriment of
the entire human rights doctrine. Not only the world’s leading human rights institutions
and organizations, but also the very doctrine of human rights, have been exposed as a
hollow creed in which no one--save the accused nation, in this case--believes.
The doctrines of international human rights and international humanitarian law
aim to establish universal acknowledgment of the value of the individual human being,
of the sanctity of his life and the dignity of her person. These doctrines were given
special impetus after the Second World War, when the horrors of the Holocaust haunted
the conscience of what used to be called “the civilized world.” It might seem ironic that
such a noble edifice should collapse under the weight of the double standard that the
world now applies to the Jewish state. But it is not ironic; it is intentional. Few autocratic
regimes have a use for a philosophy that values the individual and judges actions by a
standard of right and wrong. A “victim-focused” form of justice is more malleable, and
more useful--but only once the unique historical victimhood of the Jewish people,
singled out by Hitler for destruction, can be obscured or inverted.
When right and wrong are reduced to weak and strong, all that tyranny requires
is the propaganda needed to portray itself as the abstract victim of perceived injustices.
In such a world, human rights are not merely politicized--they are nullified.
This is the legacy of the Goldstone Report: that there is no liberty in the world,
save that which the people of free nations establish, and defend, for themselves. Long
may the United States, Israel, and our allies live to protect human rights, in the only
places they can be trusted to abide.

57 Quoted in Norwitz, supra note 18.

16