October 13, 2009 11:53 PM
by Alan M. Dershowitz
Felix Frankfurter Professor of Law, Harvard Law School
Goldstone Backs Away from Report: The Two Faces of an International Poseur
With so much (though not all) of the civilized world justly condemning (or ignoring) the Goldstone report for its distortion of the facts and its one-sided condemnation of Israel, Richard Goldstone himself now seems to be backing away from the report's conclusions-at least when he speaks to his Jewish audiences.
In an interview with Jewish Forward, Goldstone denied that his group had conducted "an investigation." Instead, it was what he called a "fact-finding mission" based largely on the limited "material we had." Since this "material" was cherry-picked by Hamas guides and spokesmen, Goldstone acknowledged that "if this was a court of law, there would have been nothing proven." He emphasized to the Forward that the report was no more than "a road map" for real investigators and that it contained no actual "evidence," of wrongdoing by Israel.
"Nothing proven!" No "evidence!" Only "a road map!" You wouldn't know any of that, of course, by reading the report itself or its accompanying media release. In the text of the report itself, Goldstone neither sought to clarify nor explain what he now claims is the limited scope and legal implications of the report. The language of the report reads like a judicial decision, making findings of fact (nearly all wrong), stating conclusions of law (nearly all questionable) and making specific recommendations (nearly all one-sided). According to the Forward:
".the report itself is replete with bold and declarative legal conclusions seemingly at odds with the cautious and conditional explanations of its author. The report repeatedly refers, without qualification, to specific violations of the Fourth Geneva Convention committed by Israel and other breaches of international law. Citing particular cases, the report determines unequivocally that Israel "violated the prohibition under customary international law" against targeting civilians. These violations, it declares, 'constitute a grave breach' of the convention."
It is as if there were two entirely different "Goldstone Reports." The first submitted to the United Nations and the second to the Jewish community. In speaking so differently to different "audiences," Goldstone is reminiscent of Yassir Arafat, who perfected the art of double-speak, by using bellicose language when addressing Arab audiences and more accommodating language when addressing western audiences.
Goldstone apparently lacked the courage to stand up to the other members and staffers of his commission and to insist that his clarifying language be included in the report itself. Nor did he have the courage to file a dissenting or concurring statement. Instead, he spoke out of both sides of his mouth, sending one message to those who read the actual report and a very different message to those who read his words in the Jewish Forward (and the New York Times for whom he wrote a more ameliorative op-ed on the day after the release of the Report). In doing so, he is trying to have it both ways.
Goldstone went so far as to tell the Forward that he himself "wouldn't consider it in any way embarrassing if many of the allegations turn out to be disproved." This is total nonsense. Goldstone has put his imprimatur-and his reputation-behind the reports' conclusions. The only reason anyone is paying any attention to yet another of the serial condemnatory reports by the United Nations Human Rights Council is because Richard Goldstone-a "distinguished" Jew-allegedly wrote it and signed on to its conclusions. If he really doesn't stand by its conclusions-if he doesn't care one way or another whether they are true or false, proven or unproven-then no extra weight should be given to its findings or conclusions because of the "distinguished" reputation of its Jewish chairman.
But weight is being given by some to its "unproven" and uninvestigated allegations which Goldstone admits may be wrong. There have been calls for boycotts, divestments, war crime prosecutions and other forms of condemnation based on the conclusions reached (or not reached, depending on which side of Goldstone's mouth one is listening to) by the Report.
If Goldstone stands behind what he told the Forward, then he must come forward and condemn those who are treating his report as if the allegations were based on "evidence" and "proven." Don't hold your breath, because such a statement would be heard by both of Goldstone's audiences at the same time.