IDF Should Have Probed Gaza War, Despite Goldstone's Retraction

The Goldstone report was a fit of pique, with its author miffed that the Israeli government refused to cooperate with his commission - regardless, the damage has been done.

The international left-wing and Muslim organizations were aghast. The United Nations Human Rights Council, normally such a dependable body, had gone and appointed a Zionist Jew to investigate Israel's war crimes in Gaza. "This is like appointing the fox to find out who killed all the chickens!" squawked one Islamist website in Britain.

True to form, the trustee of the Hebrew University of Jerusalem and president emeritus of World ORT, Richard Goldstone, demanded and got a change in the mandate of his commission to include also war crimes alleged to Hamas, not only the Israelis. The Israeli government was still naturally suspicious of any initiative emanating from the UNHRC headquarters in Geneva, but in a lengthy phone call to recently-elected Prime Minister Benjamin Netanyahu, Judge Goldstone convinced him that the investigation would be scrupulously fair.

Richard Goldstone
United Nations

IDF Chief of Staff Gabi Ashkenazi dug in his heels. He had already promised his officers that no soldier would be questioned by outside committees and that all the investigations would be conducted within the army. The popular general enlisted the media's support against the government and Netanyahu's right-wing constituency gave him hell. For once, the prime minister stood his ground. "The government gives orders to the army," he made it clear to a furious Ashkenazi, "not the other way around." Ashkenazi backed down from his threats of resignation and begrudgingly gave the order to the IDF Military Advocate General's Corps to step up its investigation into allegations of misconduct during Operation Cast Lead and share its findings with the commission.

The four-member panel's fact-finding visit to Israel was delayed. The Pakistani member, lawyer Hila Jilani, resigned following attacks in the Arab press of her cooperation with the Zionists. Eventually they arrived and spent the week cloistered with IDF Military Advocate General Brig. Gen. Avichai Mendelblit and his team of investigators and lawyers. One evening, they went for a long dinner at the home of Goldstone's old friend, former Supreme Court president Professor Aharon Barak, who explained them the intricacies of civilian oversight of the military legal process.

Their next stop was supposed to be Gaza, but threats from local gangs, convinced that the commission members were Zionist stooges, meant that Hamas could not guarantee their safety. The Palestinian side was finally heard in Cairo and by video-link to Geneva, but the commission members were disappointed by the lack of serious information or cooperation.

Its preliminary report reflected this and a storm erupted at UNHRC headquarters. Arab and other members claimed that Goldstone had been co-opted by Israel and called for his mandate to be revoked. The Council was deadlocked and meanwhile Goldstone and his colleagues presented their findings at a packed press conference in London. The loss of human life had been tragic, intoned the judge, but the commission had found no proof of Israel intentionally targeting civilians in Gaza, while cases of individual misconduct were being investigated satisfactorily by the Israeli authorities.

His two co-panelists, who had originally started off with positions hostile to Israel, begrudgingly concurred, adding as a sop to the other side that a follow-up commission would be required to ensure that the Israelis continue investigating.

Regarding Hamas, their verdict was damning. Not only had the movement intentionally fired rockets at civilian homes around the Gaza Strip; it had done nothing to investigate any of its alleged war crimes.

The Goldstone report kicked off an international debate on the difficulties of conducting warfare in urban surroundings where terrorists hide among civilians, as Hamas did in Gaza and the Taliban do in Afghanistan. The UNHRC was fatally discredited in the eyes of the western media, with growing calls for the whole organization to be dismantled.

A naive and unrealistic scenario? Perhaps, but when you review the facts dispassionately, take a good look at Richard Goldstone's record and his personal and public life before the Gaza commission, and read what he wrote two weeks ago in the Washington Post, it would seem that his original one-sided report was an aberration. From the conclusions of the follow-up commission headed by American Judge Mary McGowan Davis, delivered last month, it is clear that Israel did cooperate (through a back-channel ) and pass on to the UNHRC detailed accounts of its investigations.

The final outcome has not been so different. The UN will not cancel the original Goldstone report, but that is now merely a declarative move. The McGowan Davis report basically removes any legal basis for prosecuting Israeli officers abroad, since she clearly found that Israel had "dedicated significant resources to investigate" the allegations of its soldiers' misconduct. But while this may mean that IDF officers can take their summer holidays in London without fear of being hauled before a magistrates court, the deeper damage done to Israel's standing in the world remains. Goldstone's op-ed does little to repair that.

The bottom line is that in the end, the IDF was forced to rigorously investigate every allegation, no matter how spurious, in the Goldstone report, and share its findings with a UNHRC-appointed commission. The hysterical and populist response of Netanyahu, Ashkenazi and much of the Israeli media simply served to prolong the ultimate verdict.

And what about Goldstone himself? As some have argued this week, he should have made a greater effort at the time to find evidence in Israel's defense, despite the lack of official cooperation. True, and that is a matter for his own conscience. It should not absolve Netanyahu and Ashkenazi, who hardly encouraged him to do so, from their responsibility.

Why did Goldstone change his mind now, all of a sudden? Over the past two weeks, law professors and lecturers who challenged and debated him at different forums have tried to take credit for the volte-face. Maybe they had some accumulative effect.

Other wild theories abound on the internet, but in lack of any clear evidence, I prefer my own pet theory: Just think of Richard Goldstone as a crotchety old uncle, who following some relatively minor slight, refuses to talk to you and even changes his will, cutting you out of the inheritance. Two years later, feeling lonely, he wants to take part in your Passover Seder so he seeks the best opportunity to rebuild bridges without losing too much face.

Goldstone was peeved with the Israeli government for refusing to cooperate with his commission - him a respected judge, veteran Zionist and all. The Goldstone report was his fit of pique and now, slightly ashamed with the damage it has caused, the McGowan Davis report gave him the opportunity he was looking for to return to the fold.

Evidently, the Torah was on to a good thing when it instructed us to "Give honor to the aged."