Interview with Judge Richard Goldstone

Link

October 2, 2009

A Fundamental Jewish Value

by Rabbi Michael Lerner – Tikkun – 2 October 2009

This interview was given to Tikkun magazine by Judge Goldstone (herein referred to as RG) and conducted by Rabbi Michael Lerner (ML below), editor of Tikkun magazine and chair of the interfaith organization The Network of Spiritual Progressives and by Rabbi Brain Walt (BW below), founding chair person of Rabbis for Human Rights (North America) and chair of Ta’anit Tzedeck.

ML: I really appreciate you for taking the time to be with us.

RG: Well thank you for making the contact, I really appreciate it.

ML: Was and is the blockade of Gaza a war crime?

RG: It was a violation of international law, it was not a war crime because there was no war. It was a violation of the 4th Geneva convention. There has to be an actual military armed conflict for it to be a war crime. It is also a violation of international human rights law.

ML: What are the specific steps that Israel could have taken to stop the shelling of southern Israel before commencing an attack on Gaza?

RG: Well, it could have used greater pressure by diplomatic means. They could have used the security council for that purpose. Israel could have put the security council on notice and said “if you don’t stop this, if you don’t do something to stop it, we will have to resort as a last resort to military means.” But in our report we didn’t question the right of Israel to use military force.

ML: So you are saying that the attack on Gaza was, by your estimation, not a violation of any international laws or agreements?

RG: I’m not sure I want to comment on it, it was not something we looked into. We were looking at war crimes, which are crimes committed during military operation. We didn’t look at the justification for using military force.

ML: Do you think Israel could have succeeded in stopping the bombing of Sderot had it gone to the Security Council?

RG: Well, I don’t know. If it didn’t work, then I have got no doubt that Israel was entitled to take a strong action to put a stop to the firing of rockets and mortars and has a duty to its own population to protect them.
Military force should be the very last resort. I think it is arguable here that other diplomatic means could have worked. If they didn’t work then the last resort is to use force, and whether it is military or policing action force, Israel was entitled to take active steps.

ML: Hamas and supporters of the Palestinian cause have always said that Israel could have taken the step of ending the blockade of Gaza, and that would have been a condition for ending the attacks by Hamas.

RG: That is getting into the politics of the situation, which I don’t wish to do. What I hear you say is why peace is so crucial in the Middle East. There is a sort of spiral, the blockade, the refusal to respect the right of self-determination for the Palestinians.

ML: So once deciding to attack, the question gets raised: Is there any way to fight a war against terrorists that would not result in deaths and casualties of civilians, assuming that urban terrorists have located themselves in the midst of the population?

RG: You know, commando actions could have been taken. But in any event, even though Israel might have been entitled to use force, the real point of the report was that it was disproportionate force. Look at the thousands of homes destroyed, the factories, the agricultural land, this is almost impossible to justify militarily.

BW: Also in your view, in the view of your report, it was deliberate?

RG: I don’t think there is any dispute about it. The Israeli army has very sophisticated weaponry, and I don’t think they make many mistakes as to what they target.

BW: But I think that is the one piece where your critics are very upset about the report: the whole question of intention. And they do deny that there is intention, they claim that the civilians died accidentally

RG: I think we are talking at two different levels. When it comes to the destruction of infrastructure, they haven’t really responded at all to that, and that was part of what the report addressed. None of the Israeli responses have even said a word about the property destruction, the bulldozing of agricultural fields, the bombing of water wells, the bombing of sewage works that caused a huge spill over a huge area. There has been no attempt to justify that. When it comes to the actual killing of civilians in urban areas, that is where the big dispute comes in. I think all I can do is refer to the 36 incidents that we report on. And with almost all of them, we found the Israeli response to be disproportionate.

BW: As regard to wells and the factories, one can make a reasonable argument, not a pleasant argument, why Israel would want to do it?

RG: There was a political reason, and that was collective punishment and an effort to weaken the support for Hamas.

ML: Is that a violation of international human rights, destruction of infrastructure?

RG: It is a war crime. It is an attack on civilian objects, as opposed to military objects.

ML: Is that the kind of attack that is serious enough to warrant reprimand through the ICC?

RG: It would certainly be something that falls within the jurisdiction of the ICC.

BW: Let’s jump to civilians. Do you follow that same logic with regard to civilians? i.e. in regard to the water, electrical, and food, they wanted to go after the infrastructure, in regards to civilians, was that disregard for human rights, or was it intentional killing?

RG: Certainly some of the incidents appear to be intentional. What we didn’t do, because it wasn’t our mandate to do, was to investigate who bore responsibility. Whether this was policy at a high level, or policy at a battalion level, or specific soldiers who acted on their own. That is the sort of investigation that we suggested should be taken by Israel itself.

BW: If I remember correctly, in the report, you quote Israeli officials who say “we are going after the infrastructure, we want to cause them hurt,” and so on and so forth, but I don’t remember any references to Israeli officials indicating their intention to kill civilians.

RG: No, we didn’t make any allegation that there was a policy to kill civilians.

ML: That is an issue that has to be investigated.

RG: Yep.

BW: Like you, I was raised in the South African Jewish community. I know exactly the community you have come from, I was raised in the same community, with similar values around Israel and so on. And it seems to me that when I read the statement that you made yesterday just before the council … it felt to me very courageous because I admire immensely what you did. It was so moving to me to read that statement.

ML: You made a statement in response to a woman who was attacking you for betraying your own people?

RG: I said I wasn’t going to dignify her remarks with a response, but they call to mind the attacks made on me as a white South African for going against the interests of whites during the Apartheid era. And I said I thought having regard to the terrible history of the Jewish people, of over 2000 years of persecution, I found it difficult to understand how Jews wouldn’t respond in protecting the human rights of others. And I talked about that as being a fundamental Jewish value.

BW: Rabbi Lerner and I are involved in an organization, Ta’anit Tzedeck, that is calling for the lifting of the blockade because of the material deprivation it causes, and we are calling upon people to fast the 3rd Thursday of each month in solidarity with this demand. I wondered for you as a South African Jew who cares about Israel, how is it to face the incredible wall that Israel has placed in your way about this, and seeming disregard, like they aren’t really interested in your findings and substantive things. It is a position of arrogance.

RG: When I went into this, I didn’t know any of the details we were going to find. I obviously watched the TV and knew there was tremendous destruction, but I wasn’t prepared for what I saw on the ground.

BW: What happened when you saw what you saw on the ground?

RG: I was shocked at the number of buildings that had been razed. Particularly private homes. And I wasn’t prepared for the stories that were told by witnesses we considered to be credible. As to the way the Israeli Army treated them. I felt a great deal of shame and embarrassment particularly as a Jew, but also as a human being.

ML: Maybe you could cite one such story?

RG: Well, the one that really upset me was the shelling of a full Mosque during the afternoon service. And we didn’t look at other Mosques. We accepted the idea that maybe some Mosques were used to give shelter to fighters and militants. They may also have been used to store weapons, but even if that was true (and we found that it wasn’t in respect to this particular Mosque), but even if it was, it is completely unacceptable and a warcrime to shell the Mosque during a service. There were hundreds of people in that Mosque, and 15 people were killed and many more were injured. It is that sort of conduct that is absolutely unacceptable. That was one of the incidents that caught me in particular. And it is a particular concern because of the reaction of people who were there. I put myself in the position how Jews would feel if they were attacked in a synagogue when it was full of worshipers.

ML: Israeli Prime Minister said “The Israeli public will not be willing to take risks for peace if stripped of its right to self-defense.” And the article said, Netanyahu referred to the Goldstone report written by the fact-finding UN mission that investigated IDF operations, stating that the peace process would be brought to a halt if the report was submitted to the international court in The Hague. A democratic state’s right to defend its population has been crushed by the UN body.

RG: Well, it is absolutely incorrect. Our report doesn’t bear on the question of self-defense at all. It is not a relevant remark to make.
There is not a word in the report that questions the right to self-defense.

ML: Netanyahu, however, is saying that de facto, you can’t conduct defense in a war against terrorists without engaging in operations against civilians, and your response is, there is a way to conduct those.

RG: Yes, it is a question of what is proportionate.

ML: Your report suggested that Israel has to conduct a further investigation, and the question is, is there any point in a government-led investigation?

RG: It depends who they appoint. If they appoint someone who is transparent and public about it, then I think that would certainly be exactly what we had in mind.

ML: Do you think you could state any minimum requirements? Those who are critical of Israeli policy think that the investigation would be a way of avoiding taking any responsibility and would get the public’s eye away from the Goldstone report and would drown the impact of the Goldstone report and would probably come up with a much more equivocal finding than your report. I am wondering if you could state any minimum criteria for what it would take for people outside to take a government report where the government is investigating itself.

RG: I think the investigation must be conducted by people who are independent and are perceived to be independent like former Israeli Chief Justice Aharon Barak. And it must be done with openness and transparency. And it certainly must take into account evidence from all sides. One of the problems I’ve got with these military investigations is, as far as I know, there’s only one which I’ve read about where the military investigations even spoke to any of the victims, spoke to any of the people from Gaza who obviously are the best people to speak to.

ML: In other words you’re saying that the first criterion is that the people be independent, and second…

RG: that the investigation is a transparent one.

ML: The second is transparent and the third is that they speak to the victim.

RG: Right.

ML: The victims of the assault, not just to the military people to explain what they were intending to do.

RG: Correct.

ML: Are there any other criteria?

RG: No, I think those are the major criteria. And Israel has done it. I think the Israel’s investigation into Sabra and Shatilla is a very good example. And that was accepted absolutely by the international community as being appropriate.

ML: You say people are independent but there were some people in the peace movement in Israel who say that Aharon Barak himself led a Supreme Court that never challenged the Israeli military’s denial of human rights to Palestinians

RG: It’s a difficult one. I’ve known Aharon Barak for many years and I absolutely respect his independence and integrity. In my book he’d be a very appropriate person.

ML: OK. Let me give you one of the frequent criticisms of the Goldstone report that I’ve heard and that I’d like to put to you. Not that it’s inaccurate but that it’s a reflection of a prejudice because of selective prosecution. The UN gives this attention to the sins of little countries or powerless countries, relatively powerless countries, while never daring to do a comparable report on big guys like the human rights violations of the United States in Iraq, of Russia in Chechnya, China in Tibet. The argument goes that when one picks on historically oppressed groups like Jews for their sins while ignoring the far greater sins of the more powerful, the UN participates in a kind of double standard that in other contexts would be seen transparently as racist or illegitimate. So that even though you, Judge Goldstone, were perfectly fine in what you did, the actual investigation itself by virtue of selecting this target by a body that doesn’t target the more powerful is a reflection of prejudice.

RG: Generally I agree with the criticism. I think the powerful are protected because of their power. But it’s not prejudice it’s politics. It’s a political world. There’s no question of not investigating countries because of who they are for religious reasons or cultural reasons, it’s because of their power. They use their power to protect themselves. It doesn’t mean that investigations [in countries] where politically they can be held are in any way necessarily flawed or shouldn’t take place. The same argument was raised by Serbia in particular. They said, “Why was the international criminal tribunal set up for us? It wasn’t set up for Pol Pot, it wasn’t set up for Saddam Hussein, it was set up for Milosevic.” And my response at the time when it was put to me by the Serb minister of justice, as I remember very well, was if this is the first of the lot, then I agree with you, it’s an act of discrimination, but if it’s the first of others to come then you can’t complain, you have no right to complain because you’re the first. And if crimes are being committed then at least, to go after those that one can go after politically is better than doing nothing.

ML: For example, there haven’t been any comparable investigations of human rights violations by Syria, by Saudi Arabia, by Egypt — admittedly these are against their own populations.

RG: I think that what distinguishes this from that is that these war crimes are committed in a situation of international armed conflict. It’s not going to be a civil war situation.

ML: And you don’t think there is something inconsistent or one-sided and prejudicial in investigating this type of crime but not internal crime?

RG: I think it’s a double-standard more than prejudice.

ML: So you would agree that there’s a double-standard.

RG: Absolutely.

ML: And that it should be changed, but that doesn’t invalidate what you do.

RG: This is why. The best way of changing it is for every nation to join the International Criminal Court.

ML: About that. Do you have any theory of why the Obama Administration has not embraced your report.

RG: I really don’t know. No reasons have been given. I’m happy that it supports the recommendation of internal investigation.

ML: What do you think about those who’d say that pushing accountability on these kinds of crimes will be destructive to the process of peace, because Israel once facing this kind of international pressure will not be willing to submit itself to any other pressure for actual peace and that consequently the Obama Administration’s refusal to take your human rights violations seriously is a reflection of their desire to make the peace process work.

RG: I don’t know that but if that’s correct I would strongly disagree with their reasoning. It’s been my experience that there can be no peace without justice. There can be no peace if victims are not acknowledged. [Editor's note: This view, of course, has been the underpinning of the Truth and Reconciliation process in South Africa that did in fact yield peace between the white and black populations, an outcome that has frequently been attributed to this process of requiring both the African National Council and other freedom fighters as well as the supporters of the apartheid regime to fully describe what they did and when they violated the human rights of others. The Goldstone report calls for both Hamas and for Israel to conduct investigations.]

ML: Can you say another sentence about what gives you that feeling. What’s the historical basis for thinking that?

RG: Well you know you’re not going to get peace when a society has a deeply imbedded call for revenge. And the way to avoid that, and a way to avoid collective guilt is through justice. The crimes that we’ve identified that were committed by the Israeli Defense Force are not in my view crimes committed by the people of Israel. There are many people in Israel who would oppose them.

ML: I’ll look at that then. Do you think there’s anything in the speculation of some in the United States that the reason why it wants to distance from the Goldstone report is because by the similar criteria the United States might be brought to a similar accounting for what it has done in Iraq or Afghanistan?

RG: I don’t. I absolutely don’t, I haven’t read or heard of the U.S. intentionally attacking civilians. if innocent civilians have been killed or injured by the United States in Afghanistan or Iraq it’s been by negligence. It hasn’t been by intention. And when it’s happened it’s usually been followed by apology.

ML: What do you think Americans can do now to push our government to take seriously the recommendations of the Goldstone report?

RG: My first choice would be to put added pressure on Israeli to have the sort of investigation we’ve been talking about. I don’t know, maybe I’m a naive optimist, but I thought the statement by Netanyahu that the cabinet is going to consider an investigation is a positive shift.

ML: And do you have any views on the larger conflict itself, about what you think would be the most wise path that would come to settlement between the two sides?

RG: It seems to me its a question of leadership. I think we’re lucky in South Africa to have leaders of the caliber of DeClerk and Mandela. Leadership could deliver what they promised. And it seems to me that that’s what missing at the moment in the Middle East. Particularly on the Palestinian side. As long as they’re going to be fighting against each other who’s going to represent them meaningfully at the peace negotiations?

ML: Your daughter Nicole is alleged to have told the international media that you are a proud Jew and one who loves the State of Israel and if not for your efforts the outcome of the report would’ve been even more damaging.

RG: That’s her opinion, and I really don’t want to comment on it. The first part is absolutely correct. I don’t think it’s possible to say whether the report would’ve been more or less damaging if I hadn’t been involved.

ML: Could you say one last sentence about what your feelings are about Israel and Zionism. I wanted to hear from you.

RG: I’ve worked for Israel all of my adult life.
I’ve been involved with the governor of the Hebrew University for what must be thirty years. And I’ve worked in World ORT since 1966. I’ve been involved in working for Israel and I’m a firm believer in the absolute right of the Jewish people to have their home there in Israel.

ML: That’s a strong and clear statement. I want to thank you for this work. It’s a Kadush Hashem from my standpoint and the standpoint of many many Jews. I know that Israel will be much stronger when its embodying Jewish values of generosity or love of a stranger

RG: Thank you very much for reaching out to me. I much appreciate it and certainly it’s really crucially important for Jews particularly to stand up for Jewish values. I don’t think this is what’s happening sufficiently.

To read the full Goldstone report, go to:

http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm

This interview was conducted on October 1st, 2009, with Judge Richard Goldstone, the chair of the UN commission investigating the War in Gaza in 2008 and 2009. In the latter years of Apartheid in South Africa, Goldstone served as chairperson of the South African Standing Commission of Inquiry Regarding Public Violence and Intimidation, later known as the Goldstone Commission. The Commission played a critical role in uncovering and publicizing allegations of grave wrongdoing by the Apartheid-era South African security forces and bringing home to “White” South Africans the extensive violence that was being done in their name. The Commission concluded that most of the violence of those years was being orchestrated by shadowy figures within the Apartheid regime, often through the use of a so-called “third force.” The Commission thus provided a first road map for the investigations into security force wrongdoing that, after democratization, were taken up by the country’s Truth and Reconciliation Commission. After South Africa’s first democratic election in April 1994, Goldstone served as a judge of the Constitutional Court of South Africa, from July 1994 to October 2003. The Court was entrusted with the task of interpreting the new South African Constitution and supervising the country’s transition into democracy.

He also served as national president of the National Institute of Crime Prevention and the Rehabilitation of In August 1994, Goldstone was named as the first chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), which was established by a resolution of the UN Security Council in 1993. When the Security Council established the International Criminal Tribunal for Rwanda (ICTR) in late 1994, he became its chief prosecutor, too. He was a member of the International Panel of the Commission of Enquiry into the Activities of Nazism in Argentina (CEANA) which was established in 1997 to identify Nazi war criminals who had emigrated to Argentina, and transferred victim assets (Nazi gold) there. Goldstone was chairperson of the International Independent Inquiry on Kosovo from August 1999 until December 2001. Goldstone serves on the Board of Directors of several nonprofit organizations that promote justice, including Physicians for Human Rights, the International Center for Transitional Justice, the South African Legal Services Foundation, the Brandeis University Center for Ethics, Justice, and Public Life, Human Rights Watch, and the Center for Economic and Social Rights. He is a trustee of Hebrew University.

Subsequent to the release of his UN report which criticizes human rights abuses and violations of international law by both Hamas and Israel, and calls for each to conduct an independent and objective investigation, he has been assaulted by various leaders in the Jewish world and described as being anti-Semitic.