Everyone's been wondering why Richard Goldstone penned his April 1 piece for the Washington Post, stepping back from assertions he and three other international factfinders made in their landmark report on the Gaza conflict of September 2009. The speculated causes have been pressure on Goldstone from supporters of Israel and the judge's personal anguish over how his report and status were being used by Israel's critics.
We'll probably never know for sure. But Goldstone's epiphany seems to have come recently; for his piece changes his specific judgments of two issues he addressed in a speech just 2-1/2 months ago at Stanford. One was his criticism back in January of a horrific episode, an Israeli bombing that killed 29 members of an extended family. The other was his disparaging in January of Israel's claims on the number of combatants killed. In both cases the new piece switches direction--and suggests to me that the judge worked on the piece with someone else.
First the house bombing.
In the Post piece, Goldstone writes that Israeli investigations of incidents in the conflict have disproven the report's allegation that civilians were deliberately targeted by Israel:
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home [on January 5, 2009]. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
But when he spoke at Stanford in January, on "Civilians in War Zones," Goldstone was not so forgiving. He went into the shelling of the al-Samouni house (as it is spelled in his original report) at some length, and discussed the same reports of the Israeli government investigation: the drone pictures were fuzzy and were incorrectly interpreted by Israeli officers to show men carrying rocket launchers into a house-- when in fact, they were carrying firewood to a cold house in which scores of frightened family members were gathered. The al-Samouni family was there under orders of Israeli troops who had a command post near the house. The men collecting firewood were "in clear sight of the Israeli troops," Goldstone said.
And even though he accepted Israeli statements that the helicopter gunships did not know what the troops on the ground knew, he still faulted Israeli conduct:
If the latest version to which I referred with regard to the al-Samouni house is correct, it would not, I suggest, excuse the actions of the Israeli Defense Force in bombing the house. It might well however justify a finding that the attack was not a deliberate one against civilians.
An attack on civilians doesn't have to be deliberate in order to be a war crime. As Goldstone emphasized at Stanford, an attack might be judged illegal "because of negligence, or because of indifference." The question of criminality also turns on whether the attacking forces used proportionate force for their target if there were civilians in the area. And at Stanford, weighing the same evidence he has now, the judge suggested that the al-Samouni attack on a civilian neighborhood failed that standard, proportional attack.
The second point on which Goldstone has reversed field is even more of a right turn. It involves the number of enemy combatants among the 1300-1400 killed during the 22-day conflict.
In the Post, Goldstone writes:
Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).
Goldstone is surely referring to a November statement from Fathi Hamad, the Gaza interior minister, last November:
"They say that it was the people who were harmed in the last war," said Hamad. "Are we not part of the people? On the first day of the war, Israel attacked the police command and killed 250 martyrs, from Hamas and other factions.
"This was in addition to the 200-300 members of the Al-Qassam Brigade [Hamas' military wing] and 150 security personnel," Hamad added. "The rest of the fatalities were from among the civilian population."
But in his speech at Stanford, Goldstone quoted Hamad and specifically rejected Israel's "reliance" on the interior minister:
There has been much debate about the number of combatants killed.. In recent months reliance has been made by some Israeli officials on the statement made in November last year [by Hamad]....This statement made some two years after the event was intended no doubt to bolster the reputation of Hamas with the people of Gaza. The Israeli reliance on it is founded on the assumption that the 250 members of Hamas who were killed in police headquarters were combatants. That is not necessarily so. Membership of Hamas alone would not have made anyone a combatant or lose their civilian content. I guess the majority of all the people living in Gaza were members of Hamas. That would not have made them combatants and subject to deliberate attack in the war. If in fact the police officers were members of the Hamas military wing or any of the other militant groups, that would be another matter. On that assumption the number of combatants who were killed would certainly approximate the number claimed by the Israeli government. I must add that in the Gaza report, we did not make any finding at all as to the number killed in operation Cast Lead….
Quite a difference from January to April.
But what do these discrepancies show? The contrasting statements confirm for me the incredible politicization of the report's findings, and the shifting mental processes by which law is fashioned. A great judge in the prime of his life appeared to hold one belief two months ago and today holds a very different one. I believe that he adjusted his views in consultation with someone else. And someone friendly to Israel.