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Goldstone explains why Israel is being singled out (after South Africa and Serbia)

The other night I came home from Judge Goldstone’s speech at Yale and, sensing that it was important, posted a quick report. In days since I’ve relistened to the speech and seen its depths. Though it was not about Gaza per se, nearly everything the judge said was a logical and quietly-impassioned response to the critics of his Gaza report to the U.N. Human Rights Council. Richard Goldstone is a sober jurist, a man of the law, but his speech was a spiritual/political discussion of racism and inequality, with a backdrop of the Holocaust and apartheid South Africa.

Indeed, the heart of Goldstone’s talk came when one of Israel’s defenders assailed the judge for conducting live TV interviews of witnesses and sneered, How can any Palestinian testify honestly when Hamas is watching? The judge responded calmly that this was a misunderstanding that had gone abroad. In fact, all Palestinian witnesses for his factfinding investigation were interviewed privately. The reason he did televised interviews of other Palestinians (and Israelis too) was to allow people on both sides "to see the faces and hear the voices of some of the victims." He’d seen this process work in the truth and reconciliation process in South Africa. "It’s my responsibility and it was very much a South African input… That was the only purpose of the televised hearing." 

But let me go to the judge’s legal argument…

Goldstone explained that war crimes law came out of World War 2 and "the shadow of the Holocaust." And then for the 40 years of the Cold War, these laws slept. If only the law against apartheid had been enforced, Goldstone lamented, apartheid might have ended in South Africa 10 years before it did. But it was not until the last 15 years that these laws have been given life. The International Criminal Court was formed. There have been several prosecutions– lately involving four African nations.

The issue now is whether powerful nations are going to allow themselves to be subject to these laws so that the system will spread to the nations "outside the tent." If the powerful demonstrate their willingness to apply these laws to the powerful, the system will gain wide credibility, and we will have a better and more peaceful world.

The first turning point in the application of international law was the war crimes tribunal in the former Yugoslavia in 1993. Europe and the United States recognized that without justice there would be no peace. Let me repeat: No justice, no peace. And so the United States insisted on having a tribunal. Goldstone was made the prosecutor. When he first flew out to Belgrade, the Justice Minister said angrily to Goldstone that the tribunal was an American device. Why should Serbia be the first when Pol Pot, Saddam Hussein, and others all over the Third World went scot free with far more blood on their hands?

Goldstone didn’t have much of an answer. He said that the Serbian minister would be correct if this was the last and only prosecution.

But it wasn’t. A year later the Rwanda genocide was also investigated by order of the Security Council.

Still, this issue of unequal application nags. As Goldstone pointed out under questioning, there is gross unfairness in the application of international law. The Balkan war crimes  were investigated because they were European, and the media brought back horrifying pictures of genocide. But this year the Sri Lankan government killed 20-30,000 Tamils and the media paid little attention, and the Human Rights Council of the UN has ignored that case. Regrettably in Goldstone’s view.

And yes: Gaza got a lot of media attention, and the result was the Goldstone report. 

Today the Israelis have said that they want to change war crimes law to deal with the reality of terrorists operating amid a civilian population. That’s inappropriate. The laws still apply. If there are a few terrorists on the roof of a hospital shooting at you, you can’t bomb the hospital–what I took to be a direct reference to the missile attacks on Al-Quds Hospital when there were hundreds of victims of Israeli violence inside it.

The Israelis have indicated that they are going to have a military investigation of the Gaza war. If that process is not open and credible and genuine, it is pointless, Goldstone said. Or if the aim of the process is the "rebuttal" of the report, an obvious reference to this NY Times story, that does nothing to make the allegations go away. They need to be investigated.

Back to inequality, the core value in Goldstone’s universe. "In matters of international affairs, inequality is the rule," he said. Trade laws are unequal. The nuclear weapons club is unequal. The Security Council veto is unequal. There is "one law for powerful nations and a different law for the weak."

The mildmannered judge with the deep voice challenged his audience. You know about equality in this country because of the Civil War and the civil rights movement, remarkable events. Now look what role inequality plays out in war times. Inequality leads to assaults on human dignity; and the denial of human dignity leads to murder, killings, and rape.

"All citizens quite rightly demand to be treated equally," Goldstone said. "The greater the differentiation, the greater is the invasion of dignity."

The message of a South African who helped bring down apartheid, directed at Israel, which has denied basic rights to Palestinians for 62 years.

The other night I got down a lot of the Q-and-A, and Goldstone’s remarkable admission that Israel was being treated "unfairly." He said, "Israel isn’t the only nation that’s being treated disproportionately and, let me say, in my view, unfairly… It’s a matter of politics, not of morality. The United Nations has a dominant group of the non-aligned movement, and the issue of the Palestinians has assumed a tremendous importance to them, and they’re using it."

This group used to harp on the South Africans, he said. There were as many or more UN resolutions passed against South Africa as Israel.

But he heard this very same grievance, we are being singled out, from the Serbian foreign minister. And yes it is unfair. But does that mean that we don’t prosecute war crimes by powerful countries? Here Goldstone made the analogy to 9 murderers getting away in New Haven, and one being prosecuted. The one defendant can rightly claim that the law is unfair. But we don’t release him on that basis.

And he threw in this idea also: If Israel considers itself a democratic nation, then it must not complain if it is held to a higher standard. Later, in the reception room, I heard him say to an Israeli who was angry about being singled out, Look, if a priest hurts someone, we go after the case because we hold the priest to a higher standard. I don’t have the quote right; but that was the judge’s point. It left the Israeli answerless.

I hope I’ve conveyed the sequence of the judge’s moral reasoning. But let me say how I heard his speech: The world is a terribly unequal place. He saw this in South Africa. People were denied their dignity. The world took too long to address the problem. The world is still a very unequal place; and today a symbol of that inequality that justifiably upsets the Third World is Palestine. And so Israel, that self-described "outpost" of western democracy, is arraigned in world opinion for crimes that pass relatively unnoticed in other parts of the world, because of this symbolism.

No, this is not a perfect world. But today this is where the pursuit of justice carries us. And powerful nations must demonstrate their commitment to justice by responding fairly. The Goldstone Report.

It may not be a perfect world, but it was a perfect performance. Goldstone has thought through all these points for years. His experience has fitted him for this moment better than anyone else we might imagine, and I thought if he did not exist we would have to invent him: A Jew raised in South Africa, who fought apartheid there and then went to Europe to apply laws generated in the Holocaust to war criminals there, and then to Africa, to extend the same standards. And now he is knocking on our door.

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