The Goldstone Follies: Live debate with Judge Goldstone

WATCH JUDGE GOLDSTONE DEBATE FORMER ISRAELI AMBASSADOR DORE GOLD: HERE

Last year, the Israeli human rights group B’Tselem released a video showing an Israeli soldier shooting a rubber bullet into the left foot of a bound and blindfolded Palestinian demonstrator at close range while a lieutenant colonel and other soldiers watched. After an army investigation of the incident, a military court charged the battalion commander with conduct unbecoming an officer.

At that point, B’Tselem petitioned Israel’s Supreme Court, asserting that the charge was not severe enough. After deliberation, the Supreme Court concurred and overturned the Military Advocate General. It demanded criminal charges, such as assault, be filed. Israel has its flaws, from its self-destructive occupation and settlement policies to its fractious political system. But the oversight the Israeli courts exercise over the nation’s military — while also not perfect — is rare even among democracies. 

You wouldn’t know that from reading the United Nations Fact Finding Mission on the Gaza Conflict report, otherwise known as the Goldstone report. This week, Prime Minister Benjamin Netanyahu will face what Ha’aretz called his greatest international test to date: whether to give in to world pressure and follow the report’s recommendation to launch in independent commission to investigate Israel’s 2008-9 invasion of the Gaza Strip, or whether to reject both the report and its recommendation. 

If the prime minister chooses the former, he risks giving legitimacy to a report that is as one-sided and shoddy as its critics say. If he completely ignores it, he risks isolating Israel diplomatically.  Leonard Fein, certainly not one to shy away from criticizing Israel when the need arises, has written that while the report is “flawed,” Israel’s best hope to avert an international backlash is to consent to its own investigation. This seems like the sensible, judicious middle course, and, fancying myself a sensible moderate person, I was about to use this column to support it.

Then I spoke to David Benjamin. 

Benjamin, a retired lieutenant colonel who served from 2001 to 2005, was one of the top legal advisers to the Israeli security establishment, heading the legal team responsible for advising military commanders and Civil Administration officials on all matters related to the Gaza Strip. He was speaking in Los Angeles under the auspices of the

Israel Policy Forum, a center-left public affairs group out of Washington

[NOTE CORRECTION: Benjamin’s trip was sponsored by The Israel Project, a pro-Israel information group out of Washington]. 

Benjamin, I assumed, would agree that complying with the report’s most anodyne directive is a simple way to move beyond it. “No,” he said. “Not at all. I don’t think Israel should give in. Israel should do nothing about the report. We should carry on doing what we’ve done.” What Israel has done and done well, Benjamin said, is investigate its own actions. 

“Goldstone completely missed the point,” said Benjamin, who read all 500 pages of the report. (I read the 50-page summary.)

“He doesn’t know what Israel’s legal system is about. He says the IDF can’t fairly investigate itself, but civilian control is built into the system. The civilian attorney general can overturn any decision of the military court, and Israel’s High Court of Justice, the Supreme Court, can overturn any decision of the attorney general. You can have a fair investigation when the military knows it is accountable to two tiers above it.” 

Israel has more than 70 non-governmental organizations that can and do bring cases to the bench, as well as an independent and feisty press. It has been investigating incidents of war crimes and human rights abuses from Operation Cast Lead since it ended. It has opened 12 new cases based on incidents described in the Goldstone report. 

Although Israel refused to cooperate with the commission, Benjamin knew Goldstone and his three fellow commissioners had these facts before them — Benjamin himself co-authored the 160-page briefing Israel submitted to the commission prior to the investigation.

“They pretty much ignored it,” Benjamin said. He concluded that the commission’s bias was deep and irreversible. Its indictment of Israel and its relative softness toward Hamas were forgone conclusions.

That assessment is bittersweet for Benjamin. A native of South Africa, he studied law at the University of Cape Town. Goldstone was his “icon,” a fellow South African jurist who headed the commissions that investigated the Rwandan genocide and the Bosnian conflict. 

“I read his judgments,” Benjamin said. “I studied him. I thought if Goldstone is everything he’s cut out to be, the report was going to be fair. But he’s made a huge error in judgment.”

I asked Benjamin if Israel committed war crimes in Gaza. 

“Of course,” he said. “We know there are soldiers who cross boundaries, and we do our best to convict them as well. We’re investigating and prosecuting all the time. Israeli society has a vested interest in its court system.” 

Read the report and read Benjamin’s briefing — both at jewishjournal.com — and it is easy to understand Benjamin’s frustration. The commission glosses over the fact that Hamas kills Palestinians who testify against it, that its use of human shields is its defining tactic and that Israel was actually fighting a proxy war against Iran and Iranian missiles (mentioned once, in a footnote). It was a brutal war with many civilian Palestinian casualties. But the Goldstone report, in its shallow and one-sided portrayal of the conflict, does Israel, the Palestinians, and justice itself no favors.

WATCH JUDGE GOLDSTONE DEBATE FORMER ISRAELI AMBASSADOR DORE GOLD: HERE