[THS] Interview with Judge Richard Goldstone

[Peter Webster]

http://www.informationclearinghouse.info/article23619.htm

A Fundamental Jewish Value.

Interview with Judge Richard Goldstone

By Rabbi Michael Lerner

October 02, 2009 "Tikkun" -- 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 organzation 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.