Israel Matzav: The disingenuous Richard Richard Goldstone

The disingenuous Richard Richard Goldstone

ABC News (Australia)'s Mark Colvin interviewed Richard Goldstone on his Thursday evening PM show. You can listen to the interview here. Here's part of the transcript (there's a full transcript here) with my comments (Hat Tip: Daled Amos).

I put Mark Regev's accusations to Justice Goldstone today, but first I asked him about the new Israeli campaign to change the laws of war.

RICHARD GOLDSTONE: I don't agree at all. I think the interpretation of the rules may change from decade to decade, but the fundamental principles remain the same and that's to protect civilians from victimisation during war.

The laws of war are in need of updating to account for asymmetric wars against terrorists who hide among the civilian population. The laws of war were made for an era when armies in uniform fought battles against each other, and that's often not the situation today.

But that's almost irrelevant to the present discussion. Under proper interpretations of current international law - which looks at criminal culpability from the point of view of an army commander on the ground and not from the point of view of a group of judges several months after the fact - Israel was not in violation of the laws of war. We should keep talking up that point for now and not future recommendations and changes.

MARK COLVIN: So what did you do to change the mandate?

RICHARD GOLDSTONE: Well I refused the original mandate because I thought it was biased against Israel and the president of the Human Rights Council asked me to write literally my own mandate, a mandate that I considered fair and even handed and I did that and he said well that's the mandate that I'm giving you.

He took it to the Human Rights Council, there was no objection and of course since then, very importantly, our whole report based on that mandate has been adopted by the Human Rights Council.

This is incredibly disingenuous. Here's Goldstone's mandate as approved (and never changed) by the 'Human Rights Council':

an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.

The enabling resolution behind the Goldstone Commission remained unchanged, and Goldstone was still accountable to the Council that passed this resolution. The fact that the Council accepted the report - without ever discussing the mandate again - doesn't change the mandate.

MARK COLVIN: Why did you accept the mandate given that it used the phrase "occupation of Gaza by Israel", or a phrase very similar to that?

RICHARD GOLDSTONE: No what...my mandate said nothing about occupation. My mandate instructed us to look into human rights and humanitarian law violations in relation to operation Cast Lead whether before during or after.

You can go look at his mandate (above) and see that it refers to Occupied 'Palestinian' Territory, ignoring the fact that Israel expelled all the Jews and left Gaza four years ago. How does Goldstone get there? He has a rather curious interpretation of 'occupation':

MARK COLVIN: How does that work, given that there are no Israeli troops there?

RICHARD GOLDSTONE: Well because the, the test of occupation is effective control and we, we had regard to the fact that Israel absolutely controls what goes into Gaza, what comes out of Gaza, who can go in, who can come out. It controls the air space, it has drones constantly over Gaza and we held that was sufficient... we were convinced that that was sufficient evidence to, to constitute sufficient control to make it... to have it remain an occupied territory.

Really? I didn't know Israel controls the border between Egypt and Gaza. I'll bet the Egyptians didn't know it either. And it's interesting that Goldstone thinks you can occupy a country by spying on it with drones. Would he argue that Israel occupies southern Lebanon too? And by the way, where in the Geneva Convention does it define occupation that way?

MARK COLVIN: I believe that you have said recently that your findings wouldn't necessarily stand up in a court of law; what do you mean by that?

RICHARD GOLDSTONE: Ours was a fact finding mission, it wasn't a criminal investigation, it wasn't a judicial or even a quasi-judicial investigation. We came to conclusions on the facts that we were able to gather. It there are to be prosecutions either in an international court, or I would hope in an domestic court, whether in Israel or in Gaza against people who are suspected of having committed any violations of international law, these facts that we found would have be proved beyond a reasonable doubt, which clearly wasn't a standard that we used.

Then what did he mean in the report when he used the legal/judicial terms "findings of fact" and "conclusions of law"?

MARK COLVIN: Now just going back to Mark Regev, to quote him, he said that "you came into the Gaza Strip, controlled by Hamas and having a public hearing in that sort of circumstance is like having a Stalinist show trial; that you heard exactly what you wanted to hear."

RICHARD GOLDSTONE: Well that's not correct. We heard independent witnesses from Israel certainly, we heard people who were very supportive of the Israel defence force, we heard the father of Gilad Shalit, the abducted Israeli soldier. I mean these weren't people who participated in a show trial. We heard from at least one victim of a rocket attack on Subeyrot (phonetic). It was neither a show, nor was it a trial.

He heard independent witnesses from Israel when he wasn't sleeping. And Noam Shalit (Gilad's father) is a separate case from the people of the 'Gaza envelope' who suffered for eight years with daily and nightly rocket attacks. It's a whole different category. It's a shame that Colvin didn't know to confront Goldstone with the case of Dr. Mirela Siderer, who said that she felt 'used' by Goldstone and that her testimony had been ignored.

But 'listening' to witnesses is not enough. A judge or a lawyer has to listen to witnesses critically, question their accounts and try to decipher where they've told the truth, where they've lied, where they've embellished the truth, and especially in the case of people in Gaza living under Hamas, where they're afraid to tell the truth. In this, Goldstone failed miserably by uncritically accepting every account he heard in Gaza, labeling the witnesses 'believable.'

I don't know whether Goldstone has ever studied Talmud, but what he did is to rely on something called kim li - I believe (or choose to believe) the witness. The concept is only applicable in judicial proceedings where one must choose to believe one side or the other and in any event it only applies where the judge personally knows the witness to be trustworthy. It was inappropriate here.

And by the way, isn't it just rich that Goldstone doesn't even know the name of the town of Sderot after he supposedly found Hamas guilty of war crimes for shooting 7,500 rockets at it over the course of eight years?

MARK COLVIN: Do you expect the same thing to happen on the other side? Do you think Hamas will be transparent?

RICHARD GOLDSTONE: Well I do and if it's unable ...

MARK COLVIN: I'm asking if you expect it or if you hope it?

RICHARD GOLDSTONE: Well certainly I think if Israel decides to have a domestic investigation there'll be huge pressure on Hamas to do that and if they can't, if they don't have the resources and the people available then I'm sure there's no shortage of independent judges and lawyers and academics not only in the international world but in the Arab world who could provide that assistance.

If this weren't such a serious matter, I'd be rolling on the floor laughing. This is the second time that Goldstone has expressed his faith in the Hamas 'court system,' a system whose main function is to put 'collaborators' with Israel or with Fatah to death.

Realizing the absurdity of that suggestion, Goldstone now calls on "independent judges and lawyers and academics not only in the international world but in the Arab world" to fill the judicial function. But what Arab country has an independent judiciary worthy of the name? Guess what Richard: There isn't any Arab country with an independent judiciary worthy of the name. Ooops.

What truly independent judge, lawyer or academic do you think Hamas would accept? Why do you think that they would get out of Gaza alive without prior assurances that their report would say what Hamas wants it to say? Richard Richard, Hamas isn't a state - it's a terror organization. Do you understand the difference?

Israel Matzav: The disingenuous Richard Richard Goldstone