In the wake of a monumental victory in the human rights
community to move the Goldstone Report out of the Human Rights Council (HRC) to
the General Assembly where it can be underpinned by actionable follow up,
Justice Richard Goldstone’s recent editorial (last week in the Washington Post)
makes some human rights practitioners wish it had been left to languish in the
HRC.

The Goldstone Report documents eleven incidents where the Israeli military directly targeted civilians. Four other fact-finding missions underscore these findings: Human Rights Watch, Amnesty International, Physicians for Human Rights-Israel, and the National Lawyers Guild.

Goldstone sought to do two things in his op-ed: to amend the
record by stating that Israel’s attacks may not have been deliberate and
second, to emphasize Hamas’s culpability under the laws of war. In the best
case scenario, Goldstone’s intervention is a problematic attempt to cajole
Israel to participate in the international process for accountability.

However, even in that case, the editorial is
counterproductive, short-sighted, and casts Goldstone’s attempts as no less
than curious.

Just last week, I had the chance to speak to Goldstone at
Stanford Law School where I participated in a debate on the report featuring
him as a discussant.

Goldstone seemed struck by recent revelations made in
Israel’s investigation of itself that its murder of 29 civilians in the
Sammouni home, where approximately 120 civilians had taken refuge, was the
result of negligence and not a deliberate attack.

He emphasized that had Israel participated in the
investigatory process rather than boycott it, it would have been able to
contest the mission’s findings before the report’s release, thereby correcting
its alleged bias.

He echoes this sentiment in his op-ed where he writes:

“I regret that our fact-finding mission did not have
such evidence explaining the circumstances in which we said civilians in Gaza
were targeted, because it probably would have influenced our findings about
intentionality and war crimes.”

Goldstone should have known better: on the one hand, he
accepts Israel’s investigatory findings at face value notwithstanding the
Independent Committee of Experts’ conclusions that they are structurally flawed
and unlikely to yield effective measures of accountability and justice.

Second, and perhaps more importantly, Goldstone takes for
granted that Israel preemptively rejected the report precisely because the
mission treated Hamas evenhandedly rather than dismiss it as a terrorist
organization whose annihilation is justified by any means necessary.

That is why it should come as no surprise that rather than
respond to his proclamations with a renewed faith in international legal mechanisms,
Israel’s staunchest allies are opportunistically characterizing Goldstone’s
editorial as an attitudinal shift towards Israel in the West while its prime
minister has called on the U.N. to retract the report altogether. 

The Goldstone Report documents eleven incidents where the
Israeli military directly targeted civilians. Four other fact-finding missions
underscore these findings: Human Rights Watch, Amnesty International,
Physicians for Human Rights-Israel, and the National Lawyers Guild.

In a report conducted by Israeli war veterans, 26 Israeli
soldiers who participated in the Operation confirm that there were no clear
rules of engagement.

One soldier laments:

“There was a clear feeling that no humanitarian
consideration played any role in the army at present. The goal was to carry out
an operation with the least possible casualties for the army, without its even
asking itself what the price would be for the other side.”

Together, the four investigations and the soldiers’
testimonies, demonstrate an Israeli policy of targeting of civilians and/or
negligent behavior that amounts to the direct targeting of civilians, according
to Article 51 of the First Additional Protocol.

This comports with a policy adopted by Israel since 2006,
known as the Dahiyeh Doctrine. As captured by the Goldstone Report itself,
according to Major General Gadi Eiskenot:

“What happened in the Dahiya quarter of Beirut in 2006
will happen in every village from which Israel is fired on.  We will apply disproportionate force on
it and cause great damage and destruction there.  From our perspective, these are not civilian villages, they
are military bases.”

Israel’s perspective however is not what matters.  According to the twin linchpins of
humanitarian law, namely the principles of distinction and proportionality,
civilian villages are not to be targeted, are to be protected, and are to be
spared excessive loss unless they directly partake in the hostilities.

Arguably therefore, no mission could have written a report
to Israel’s liking unless it accepted this perversion of humanitarian law
casting villages as bases.

In fact, after the report’s dissemination, Prime Minister
Netanyahu requested “the facilitating of an international initiative to
change the laws of war in keeping with the spread of terrorism throughout the
world.”

Accordingly, Goldstone’s painstaking efforts to highlight
Hamas’s culpability, which he already makes plain in paragraph 108 of the
report, are futile because the controversy has not been over the report’s
inequitable application of the law but rather over Israel’s insistence that it
should be freed from the laws’ restraints in order to have its way with its
“terrorist” adversaries.

 Goldstone also
miscalculates the value of Israel’s domestic investigations.

To date, the Independent Committee of Experts, chaired by
New York Judge Mary McGowan Davis, has reviewed the domestic investigations
process twice, and both times it found Israel’s investigations to be
inadequate.

Whereas Goldstone applauds Israel for “dedicating
significant resources to investigating 400 incidents of operational
misconduct,” he does not mention the rest of the committee’s findings.

In particular, it took issue with the fact that “there
is no indication that Israel has opened investigations into the actions of
those who designed, planned, ordered and oversaw Operation Cast Lead.”

The committee goes on to note that “more than one-third
of the 36 incidents in Gaza are still unresolved or unclear. [And] Finally, the
Committee is concerned about the fact that the duration of the ongoing
investigations into the allegations contained in the FFM report — over two
years since the end of the Gaza operation — could seriously impair their
effectiveness and, therefore, the prospects of ultimately achieving
accountability and justice.”

In light of these conclusions, it is perplexing that
Goldstone would accept Israel’s assertion that its attack on the Sammouni home
was a regrettable act of negligence by those commanders “making difficult
battlefield decisions.” 
Consider also that this is the home where emaciated children were
rescued four days after the attack because Israel prevented access to the Red
Cross.

What kind of remorseful military commander negligently
orders an air strike on a home full of civilians and then prevents humanitarian
relief to its victims for four days? At most, Israel’s conflicting
investigatory findings should have buttressed the report’s recommendation for
an international judicial enquiry.

Perhaps Goldstone sincerely believes that Israel’s boycott
of the mission was a function of remedial short-sightedness. Arguably then, his
willingness to overlook a compelling record is an effort to lure Israel to the
table of multilateral reconciliation.

In fact, his endorsement of “applying international law
to protracted and deadly conflicts” for the sake of making warfare more
humane indicates his enduring faith in the mission’s mandate as well as the
need for accountability, rather than a disavowal of the report and the
exoneration of Israel for its alleged crimes.

If this is indeed the case, the Justice exercised excessive
good faith and poor judgement to believe that Israel would accept his gesture
as an opportunity to reconcile with the UN-investigatory process, rather than
cast the final blow against the report and the HRC.

Regardless of what may have been his best intentions,
Goldstone has negligently, one hopes not deliberately, undermined the laws of
armed conflict and emboldened those states, like Israel, who believe that it is
a surmountable nuisance.

Noura Erekat is a Palestinian human rights attorney and
activist. She is currently an adjunct professor at the Center for Contemporary
Arab Studies in Georgetown University. She is also a co-editor of
Jadaliyya.com.