Richard Goldstone, who has a firm handshake and a steely gaze, is not someone who minces words. "Absolutely untrue" is how he dismissed Israeli Prime Minister Benjamin Netanyahu's contention yesterday that the Goldstone report highlighting war crimes by Israelis and Hamas during the recent Gaza War was politically biased. Goldstone was speaking at the Phillips Collection in Washington, DC yesterday evening, where he delivered the inaugural Lloyd N. Cutler Lecture on the Rule of Law, which was sponsored by the Salzburg Global Seminar. Goldstone has been on something of a road show-last week he defended his report in a debate with former-Israeli Ambassador to the United Nations Dore Gold at Brandeis University.
But the substance of Goldstone's talk last night was not specifically his report on Gaza. Instead, he offered a tour d'horizon of the progress of international law in recent decades, which, in effect, served to help explain his recent role in the Middle East. At bottom, he is a firm proponent of expanding, as far as possible, rules and norms administered by judges, to shape the behavior of nations. For him the rule of law translates into the "protection of minorities." He didn't mention John Stuart Mill, but if I had to guess, his thinking has been shaped by the British political philosopher. Goldstone proceeded to draw on his experiences as chief prosecutor of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda to make the case that ferreting out individual perpetrators-as opposed to trying to engage in collective punishment-was the way to prevent a repetition of genocide. Goldstone, who expounded his case with great clarity and vigor, pointed with pride to the dozens-no, hundreds-of tribunals and courts of international law that have proliferated around the globe.
These developments and impulses clearly have shaped Goldstone's approach to the Middle East. Goldstone emphatically stated that he would be the last person-"I am a Zionist," he said-to deny Israel a right to self-defense. What horrified him upon investigating in Gaza was the overwhelming sense that Israel had engaged in a kind of collective punishment against the Palestinians. By launching mutual inquiries, both the Israelis and Palestinians, he suggested, could get to the bottom of the mess. His report, Goldstone indicated, is simply a fact-finding effort that doesn't draw political conclusions.
Of course this is the dream of international law-antiseptically to examine the behavior of nations and set out the rules of the game. In essence, nations are supposed to sacrifice their own sovereignty, their freedom of action. But by examining the behavior of both Hamas and Israel, Goldstone is automatically placing the two antagonists at the same level, engaging in what used to be called moral equivalence. At what point does Israel's attack on Gaza become disproportionate? What happens when Hamas deliberately dresses its fighters in civilian clothing or hides among the locals? Here the report, as Moshe Halbertal points out in the New Republic, starts to get a little wobbly. To be sure, Israel will likely launch some kind of internal investigation into possible abuses-the Jerusalem Post reports that
The IDF Judge Advocate-General is working to expedite ongoing investigations into war crimes allegations against the IDF to be able to compose a report in the coming weeks that will counter Judge Richard Goldstone's damning indictment of Israel that was endorsed last week by the UN General Assembly.
But the broader question is whether the Gaza War was a mistake rather than a crime. Meanwhile, Congress is huffing and puffing about the Goldstone report, intent on passing a resolution denouncing it.
But all the resolutions in the world won't change the fact that Israel is in a bit of a pickle, even if Netanyahu doesn't want to acknowledge it. With the Palestinian Authority apparently melting down, it's possible that there will be no push from the Palestinian side for a two-state solution. Instead, the idea of a one-state solution seems to be gaining ground-something on the lines of the idea of a bi-national state proposed, or revived, by Tony Judt in the New York Review of Books, to much Sturm und Drang, several years ago. Former Financial Times columnist Edward Mortimer told me last night that the notion has indeed come into vogue among Palestinian intellectuals.
In short, it may be emotionally satisfying to go on the attack against Goldstone. But Israel has bigger problems than the Goldstone report. It should address them.
Jacob Heilbrunn is a senior editor at The National Interest.