News & Media Articles

Goldstone and Grey Areas

21 September 2009 By New Israel Fund

NIF had much to celebrate during the week before Rosh Hashanah.  Last Tuesday, the NIF Board selected Daniel Sokatch as our new CEO.  Daniel founded the Progressive Jewish Alliance in 2000 and directed the Jewish Community Federation of San Francisco, the Peninsula, Marin and Sonoma Counties for the past year.  He is passionate in his commitment to Israel and to the cause of social justice, and will prove an excellent leader for NIF. 

NIF also celebrated our 30th anniversary last Wednesday night in San Francisco, the city where the organization was founded.  Israeli Minister of Minority Affairs Avishai Braverman, Rabbi Brian Lurie, Naomi Chazan and Eliezer Yaari all shared their perspectives on Israeli political developments and the state of relations between Israel and Jewish communities elsewhere.  The overflow audience also was treated to a wonderful 30 minute set by David Broza, one of Israel’s leading musical performers. 

We also are delighted to welcome Avrum Burg as co-chair of the NIF International Council, with Martin Indyk, and as an ex officio member of the NIF Board.  Avrum is a former Speaker of the Knesset and chair of the Jewish Agency for Israel.  He has had a long-standing relationship with NIF, having received the first NIF Fellowship in 1983.

Amidst these glad tidings, there was one spoiling event: the release of the Goldstone Committee Report (pdf) regarding the December 2008-January 2009 Gaza operation.  The 575-page report presents a blistering indictment of Israeli policies and actions.  Israel is accused of numerous violations of international human rights and humanitarian law, and possible war crimes and crimes against humanity.  To be sure, Hamas is similarly charged, but placing Israel in the same dock as a designated terrorist organization certainly is not an easy comparison to countenance for friends of Israel.

The Committee recommends that the Security Council require Israel “to launch appropriate investigations that are independent and in conformity with international standards into the serious violations of International Humanitarian and International Human Rights Law reported by the Mission and any other serious allegations that might come to its attention.”   The Committee encourages the Prosecutor of the International Criminal Court to examine the findings included in the report and “supports reliance on universal jurisdiction as an avenue for States” to pursue investigations within their criminal systems.

Predictably, the Israeli government denounced the report as effectively ignoring Israel's right of self-defense, making unsubstantiated claims about its intent and challenging Israel's democratic values and rule of law.  And while the Israeli government emphasizes the number of individual investigations being conducted by the Military Advocate General, the Attorney General has rejected a formal letter submitted by eight Israeli human rights organizations reiterating their earlier request for the establishment of an independent and impartial investigation into allegations that Israel’s actions violated the laws of combat and human rights law.  A few lonely voices aside, the Israeli public’s negative attitude toward the UN will only sharpen as the legal implications of the report become better understood.    

The report’s conclusions disturbed my Rosh Hashanah meditations.   I had advocated that the Israeli government cooperate with the Goldstone Committee, and continue to believe that it was a mistake not to have done so.  Israeli involvement may not have changed the tone or outcome of the report, but direct engagement would have placed on record Israel’s rebuttal to the many specific factual allegations and legal assumptions.  

I also am not prepared to join those who seek to denigrate Goldstone’s “Jewishness” or his connections to Israel.   In an interview with Israeli Army Radio (in Hebrew), Goldstone’s daughter Nicole stated: "My father took on this job because he thought he is doing the best thing for peace, for everyone, and also for Israel.  My father did not expect to see and hear what he saw and heard." 

The question is whether what Goldstone saw and heard justified the report’s unequivocal conclusions and sharp recommendations.  In a NY Times op-ed, Goldstone explains his reasoning: “Failing to pursue justice for serious violations during the fighting will have a deeply corrosive effect on international justice, and reveal an unacceptable hypocrisy.  As a service to the hundreds of civilians who needlessly died and for the equal application of international justice, the perpetrators of serious violations must be held to account.”

As a matter of moral principle, Goldstone is undoubtedly correct.  Yet, by failing to convey an adequate appreciation for the political and military dilemmas facing Israel in its confrontation with Hamas, the Goldstone Committee’s recommendations are unlikely to obtain the support of most Western nations, who will view their own military operations in theaters such as Afghanistan as open to the same type of criticisms now directed at Israel.  Indeed, in situations involving counter-insurgency or warfare amidst urban civilian populations, we must work to reduce the dissonance between military practice and human rights norms.  

We seem to have reached an impasse.  The scope of the recommendations – Security Council involvement, referral to the International Criminal Court, universal jurisdiction – will likely prove toxic not only in Israel, but also among many western countries.  On a more practical level, the Goldstone Committee’s lead recommendation of Security Council involvement will undoubtedly be blocked by a U.S. veto.  Within Israel, little public support exists for the establishment of a commission of inquiry into the Gaza operation, and the report itself will reinforce isolationist sentiments.   And while Israeli investigative bodies are pursuing several individual cases, past precedents suggest that they are unlikely to result in prosecutions. 

Yet, the debate provoked by Goldstone and his team is worth having.  Particularly as we approach Yom Kippur, the principle of “Cheshbon Nefesh,” or personal reckoning, is relevant.  And while this concept certainly applies specifically to the actions associated with the Gaza operation, the broader challenge is how to reflect on the experience and develop appropriate lessons for future action.