Review: The Trials of Richard Goldstone

Beyond examining Goldstone’s tragic undoing, the book provides an important window into the links between lawfare and what has been called “the cult of international law” that demonizes Israel. This review, more than the book, tells the real story.

By Prof. Gerald Steinberg

The threat of “lawfare”—political warfare using international legal frameworks and accusations of war crimes—is particularly acute for Israel. Since the creation of the International Criminal Court (ICC) in 2002, Israel has been a central lawfare target.

For many, the name Richard Goldstone is closely associated with lawfare. Goldstone’s report on the three-week Gaza war that began at the end of 2008 (Operation Cast Lead), compiled and published by the United Nations Human Rights Council (UNHRC), falsely accused Israelis of intentionally killing civilians and raised the specter of ICC prosecutions. IDF soldiers sent into Gaza to end rocket and missile attacks were demonized as war criminals by a UN commission headed by a Jewish judge.

Ten years later, Goldstone’s name remains synonymous with similar UN reports, published after every round of Hamas attacks and Israeli responses (the most recent, from February 2019, dealt with the violent border confrontations). The ICC prosecutor appears to be preparing official investigations based on these lawfare campaigns.

For these reasons, the issues surrounding Goldstone’s role remain important. It is still unclear how he allowed himself to become the symbol of lawfare, but his personal history could provide answers to key questions. What role did his upbringing under the South African apartheid regime, legal training, and Jewish identity play in shaping his outlook and actions? What lessons, if any, have been learned?

This is the backdrop to the detailed biography of Goldstone written by Daniel Terris. Despite the author’s overly sympathetic treatment, which often uncritically repeats his subject’s justifications, his book provides significant insights.

For 200 pages, Terris covers the first seventy years of Goldstone’s life, presenting him as an icon bravely battling apartheid through the South African legal system and taking on other injustices through international tribunals. It is in the final third of the book—covering only three years—that Terris traces the unraveling of Goldstone’s career and reputation through the UN’s Gaza investigation.

Beyond examining Goldstone’s tragic undoing, this book provides an important window into the links between lawfare and what Professor David Bernstein of George Mason University has called “the cult of international law.” Its high priests, including Goldstone’s colleagues in law faculties, at the UN, and among powerful NGOs such as Human Rights Watch and Amnesty International, preach the belief that war and violent conflict can be overcome by a global legal system. In reality, however, they have weaponized the institutions of international law and use their infinite elasticity to advance radical ideologies that target Israel and the United States. With little or no experience in military matters, they make factual statements that have no evidentiary support, and rely heavily on aspirational legal claims.

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To make sense of Goldstone’s legal career, including its tragic final act, Terris begins with his upbringing in a liberal Jewish family living in apartheid-era South Africa, and these chapters are compelling. They present the racist and inhuman practices that characterized that society, and Goldstone’s modest role in protest activities that eschewed the radicalism, which, for others, led to prison, exile, or worse. His main brush with danger occurred when he joined friends in exposing a student sent to spy on their group of activists, for which he was questioned by police. It also earned him his first taste of media fame, including a brief moment “in the annals of popular culture.” Citing reports from acquaintances, Terris describes the young Goldstone as “cool, self-serving, a bit remote from the passions of the moment” (p. 17).

Goldstone chose law as his profession, and much of his worldview was filtered through that decision. Although he specialized in commercial law, which was largely removed from the political struggle, he was able to contribute in some ways to advancing the anti-apartheid cause, such as in helping Ismail Mahomed become the first non-white (Indian) member accepted to the Johannesburg bar. Later, he did short stints as an acting judge, and then was nominated to a full-time position on the Transvaal Supreme Court. This made Goldstone, according to some, a collaborator with the apartheid system, the laws of which he was obliged to uphold. At the same time, however, at least in his own eyes (and in those of Terris), this gave him the opportunity to change the legal framework of the regime from within. Thirty years later, when Goldstone took on the Gaza conflict, the concept of judicial activism as a lever for political change resurfaced, but in an entirely different environment, and with very different results.

Goldstone’s network expanded as a result of his frequent travels for conferences with fellow jurists. In 1994, he was selected as prosecutor for the newly created International Criminal Tribunal for the Former Yugoslavia (ICTY) situated in The Hague. According to Terris, citing Goldstone’s account and consistent with the self-effacing image he had cultivated, the offer came as a complete surprise, as did later nominations, including to the UNHRC Gaza investigation fifteen years later.

For an ambitious jurist, this was a major step. Goldstone jumped from the South African legal structure into an entirely different framework. The Balkan conflict, triggered by the end of the Cold War and the disintegration of multi-ethnic Yugoslavia, was marked by widespread violence, with neighbor brutally attacking neighbor and garage mechanics turning into mass murderers. Horrible media images eventually led Europe and the West to create the ICTY. For the first time since Nuremberg, when accused Nazi war criminals were tried, an international court sought to mete out justice to the perpetrators and victims—and, it was believed, restore some semblance of peace (p. 177).

At the ICTY, Goldstone’s job was to prepare the cases against accused mass murderers and rapists. This was not a trivial task, as Terris makes clear, but the moral issues were straightforward. Suspects were identified, usually from media reports, intelligence material, or, in a few cases, by surviving victims or participants in these crimes. Goldstone spent much of his time and energy raising funds to enable the process to proceed and debating which cases should take priority—those of elusive “big fish,” or “little fish” who could be found and brought to The Hague more easily.

Given the limited investigatory resources, Goldstone relied on nongovernmental organizations (NGOs) that claimed to espouse human rights agendas and were thought to have the professional skills needed to document violations. But this dependence also blinded him to the fundamental credibility problems and darker sides of these NGOs, as displayed in the Gaza conflict many years later. He also became politically active, befriending post-colonial anti-Israel ideologues such as Richard Falk and Ken Roth, and signing petitions opposing American military action in Iraq.

In pursuing indictments of accused war criminals, Goldstone’s career as an arbiter in the law of armed conflict (LOAC) and related frameworks continued to progress. While still at the ICTY, he also took on the position of prosecutor in the newly created International Criminal Tribunal for Rwanda (ICTR), with the task of bringing the planners and perpetrators of the genocide to justice.

If Goldstone had ended his international career at this point, and returned to the South African Constitutional Court, he would have been feted for his accomplishments. But he went one step too far by participating in, and giving his name to, the campaign to label Israel a pariah state like apartheid South Africa. The Goldstone Report published in September 2009 on the three-week war between Hamas and Israel was the deadliest example of lawfare to date. The Jewish judge with the stellar international reputation was the ideal figurehead, and the damage he and his report wrought to Israelis as individuals and as a society endures until the present day.

For Terris, the objective of this section, for which the rest is prologue, is to rehabilitate Goldstone’s reputation. For anyone without detailed knowledge of the events, he appears to do a reasonable job in the 100 pages he devotes to this task. In a few places, however, Terris acknowledges Goldstone’s mistakes, summarized in references to the Israeli ethicist Moshe Halberthal, UN Watch’s Hillel Neuer, and Rabbi Shmully Hecht at Yale. They and others confronted Goldstone with his failure to seriously investigate these complex issues and for allowing himself to be used to demonize Israel.

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In part, the answer is hubris, which is mentioned elsewhere in the book but is downplayed in these chapters. Goldstone took his own public relations seriously, including the exaggerated role attributed to the ICTY in promoting peace in the Balkans, and his contributions in Rwanda. His oft-repeated claim to have been shocked “as a Jew to be invited?…?to head this mission” (p. 218) is either naïve or disingenuous. He was clearly picked to act as the Jewish fig leaf.

Beyond the hubris, part of Goldstone’s naïveté rested in the idea that the uniquely South African experience was broadly applicable. Ignoring all the evidence to the contrary, Goldstone convinced himself that “Israel would have sufficient confidence in the mission’s objectivity to cooperate” (p. 218). In reality, Israeli officials correctly saw him as another hostile “investigator” lacking any military experience or understanding of the importance of deterrence, and beholden to hostile NGO and UN officials.

Perhaps because he had been busy with other issues, it appears Goldstone was unaware of the context of the Gaza “investigation.” He should have learned from the UN’s infamous 2001 Durban conference, in which BDS and lawfare campaigns targeting Israel were launched behind the facade of an anti-racism agenda. Durban’s NGO Forum, in which 1,500 groups participated, adopted the text of a declaration written in a preparatory meeting in Tehran, with multiple denunciations of “Israeli apartheid, ethnic cleansing, genocide, war crimes,” etc. Following this script, the UNHRC, in cooperation with the powerful network of anti-Israel NGOs claiming to promote human rights, initiated a series of “investigations” of Israel. They understood how Goldstone, with his South African Jewish background, would help weaponize human rights.

The omission of the Durban strategy of demonization, as well as the antisemitism and anti-Zionist hate in the UN, is a major lacuna in this book and mirrors Goldstone’s own blind spots. Similarly, Terris simply repeats the myths that Goldstone changed the FFM’s mandate to make it “balanced,” with the approval of the UNHRC president (a largely powerless position), and that “the countries’ silence amounted to tacit agreement” (p. 221).

Indeed, the report closely reflected the original UNHRC mandate. Grietje Baars, an experienced propagandist and lawfare campaigner, was hired by the UN staff to compile the testimonies of Palestinian victims and write the draft. (In 2010, Baars participated in the infamous terrorist-led Gaza flotilla.) The omission of Baars from Terris’ book is yet another major hole in his version of events.

In the FFM’s highly publicized visits to Gaza (described in detail in Chapter 15), the images of immense destruction stand out, and were described as having triggered Goldstone’s sympathy for the victims and the labeling of Israelis as guilty aggressors—regardless of the details. The equation was simple: Palestinians were weak and therefore innocent; Israelis were strong and therefore guilty. Unlike the Balkan conflict, in Gaza, the collection of evidence was far from straightforward, and the pseudo-investigation was easily manipulated. The itinerary was set to ensure that the FFM members heard the testimonies necessary to condemn Israel.

Goldstone and the other investigators were kept away from any facts that would have discredited the narrative, such as the extensive network of underground terror tunnels and ubiquitous rocket launchers Hamas concealed in schools, clinics, and homes.

Instead, the organizers played to Goldstone’s naïveté; he was “encouraged by the reception he received from the dignitaries of Hamas,” and found Ismail Haniyeh, an actual war criminal responsible for attempts to kill hundreds of Israelis, to be “warm and welcoming, a man of laughing eyes and a gregarious personality” (p. 231). In contrast, Goldstone was silent in the face of blatant antisemitism and hate, such when a Palestinian NGO leader declared that “inside Israel there is an identification with the aggressor, the Nazis.”

The thirty-six supposed incidents (all targeting Israel) that guided the FFM’s Gaza agenda were prepared by Amnesty International, and most of the evidence came from unverifiable Palestinian testimonies. In a glaring understatement, Terris notes that that mission’s “reliance on information from NGOs?…?would later become a matter of dispute?…?.” (p. 225).

The FFM’s “military expert” was Desmond Travers, a retired Irish peacekeeper previously based in Cyprus with no combat experience, whose interpretation of Islam led him to dismiss evidence that Hamas had stored weapons in mosques. Travers has also attacked the “Jewish lobby” and, as Dore Gold and Jonathan D. Halevi maintain, his views are “suspect of being motivated by antisemitic prejudices.” These basic issues are also missing in Terris’ version of events.

The 500-page report was published in September 2009, of which about one-third ostensibly presented the “factual and legal” dimensions of IDF actions in Gaza. The rest consisted of generic attacks on Israel and the “occupation” and blindly copied from fringe NGO reports. Goldstone’s name was on a UN document accusing Israel of deliberately targeting civilians as a matter of Israeli government policy, and citing as evidence a statement by Eli Yishai, from the ultra-orthodox Shas party, with no role in security issues.