Goldstone Agonistes (Eyeless in Gaza)

This past Tuesday I had the opportunity to attend a lecture by Richard Goldstone, head of the infamous UN Fact Finding Mission on the Gaza Conflict and principal author of the resulting report. The lecture was entitled "Accounting for War Crimes: Israel and Hamas," presented by New York Law School's Center for International Law. I believe my title for these observations is pretty apt. Below are a few observations and impressions:


• There was a strong turnout - maybe 130 people. I was pleased to see a strong showing by the pro-Israel community, beginning with a two-page handout from the Jewish Law Students Association at the door.

• The host professor had asked Goldstone not to go into the substance of the report, but to talk more about the context and other matters pertaining to his involvement. Aspects of the report itself came out more in the course of the approximately 40 minutes of Q&A.

• He started with some background about international war crimes prosecutions, beginning with Nuremburg as the first serious attempt to hold individuals accountable for war crimes. Here, as elsewhere, it seemed to me that this otherwise apparently intelligent man was incapable of noticing irony.

• In addition to Nuremburg, he referred to Stalin's show trials in the 1930's. I don't think Goldstone realizes that the masters he serves have a lot more in common with Stalin than with Truman.

• He took some pains to explain that the US had been a leader in the efforts to set up the International Criminal Court, and noted that President Truman had been strongly in favor of the Nuremburg trials. Goldstone is obviously troubled by the fact that the US and several other major countries have not submitted themselves to the court's jurisdiction.

• He mentioned a couple of things that seemed intended as analogies to his current predicament.

o When he first started to investigate war crimes in Bosnia, he met with the head of the Serbian government. The Serb leader was furious, said they'd been unfairly singled out. (I believe Goldstone thought this echoed protests that Israel was being unfairly singled out). Goldstone told him that if they were the first and last to be prosecuted, it would be unfair. But if they were the first of many, then it wouldn't.

o When he investigated human rights abuses in South Africa, whites down there accused him of being a traitor. (I'm guessing he thinks the Jewish community sees him the same way, and he thinks they're no more right about it).

• On the whole, his comments seemed to be fairly defensive, intended to refute some of the worst of what people now think of him and the report. Thus, for example, he explained that when first contacted by the head of the Human Rights Council to lead the investigation, he turned it down because the January 12, 2009 mandate by the Council was "to investigate all violations of international human rights law . . . by the occupying Power, Israel . . . due to the current aggression." He was subsequently summoned to Geneva and pressed to state his conditions for heading the group. After they agreed to starting without foreordained conclusions and to look at both sides, he agreed to take the job. He says he was unaware that others, including Mary Robinson, had previously turned down the job.

• In his own words, he naively thought that a thorough, objective investigation of the facts by his independent commission might be in Israel's interest. This comment exemplifies how obtuse an individual he seems to be, at least regarding Israel's position in world politics. He tried rather desperately to get Israel to cooperate with the investigation, but received virtually no support.

• In the Q&A there was discussion about the strength of the evidence on which the report was based. He acknowledged that their findings were necessarily based on limited information available - in his words, "a small sample"; they did the best they could with what they had available, and in a very limited time frame. He seems to be backing away from some of the stronger wording in the report, which is more akin to a legal indictment if not outright judgment.

• There seems to be no sense of proportion to Goldstone's view of war crimes. He took strong issue with the proposition at least implied in Robert Bernstein's October 20 Op-Ed piece in the NY Times that democracies shouldn't be prosecuted for war crimes violations and only despotic regimes should be. He seems to regard war crimes in a manner akin to traffic violations: it's not a question of whether a person is fundamentally a good or bad driver; if you run a stop sign and get caught, you have to pay the penalty.

• He believes strongly in the law enforcement approach rather than a military approach to fighting terrorism. In his words, "It's a matter of fighting crime." Goldstone's belief in the power and purity of the law rivals that of Inspector Javert.

• His view about identification of civilians and the necessity to avoid their casualties approaches something like strict liability, i.e., if you think you might harm someone beyond the person who's shooting at you, you must not attack. To do so is a war crime.

• When asked about one member of the mission, Christine Chinkin of the London School of Economics, he reacted very defensively. She co-signed a letter to The Times of London last January which, among other things, said that Israel's military action in Gaza was not self-defense. Characteristically, Goldstone focused solely on this issue and defended it on the basis that, under international law, a state is not technically acting in self-defense other than against invasion by another state. He noted that US actions against Al Qaeda are not, strictly speaking, self-defense. Be that as it may, he ignores the larger fact that the Times letter, rather than being a law review article, was a strongly worded opinion piece condemning the entirety of Operation Cast Lead.

• One questioner asked how he felt about the fact that his report was being used by the members of the UN Human Rights Council to cast Israel into a pariah state (in response to which I muttered, "It already was."). Goldstone got angry at this, stating that if Israel was becoming a pariah state it was due solely to its own actions.

• One wonders how he would approach the task if he were doing what he does in 1939, and Hitler asked him to investigate the conduct of the Polish army during the conflict with Germany (the one where Germany invaded Poland) to determine whether any Polish soldiers had committed war crimes against the Germans. It seems that Goldstone would be honored to have the opportunity to bring the few Polish scoundrels to justice, and be comfortable ignoring the motivations of his employer and the broader context of his investigation. That's unfair of me, though: Judge Goldstone would insist on investigating both sides in the conflict.

• Early on, Goldstone, in a rare moment of obvious self-pride, said he often tells his students, "If you don't understand the politics of international justice, then you don't understand international justice." Remarkably, the greatest surprise to me is how grossly he seems to fail to understand the politics of international justice where Israel is concerned, and of the political consequences of his own actions.

• One questioner mentioned that his doctor had contrasted his judgment-rich advice with what the patient apparently wanted by saying "I'm not a muffler shop, where you go in, put your money down and walk out with a muffler." His unfinished question to Goldstone was, "By taking on this job, haven't you in effect become a war crimes muffler shop, willing to hunt around for war crimes regardless of whether it makes sense to do so?" Did he really think he could be serving justice and truth, and even remotely think this might be good for Israel, considering the nature and motivation of those who hired him?

o More than the muffler shop, I'm thinking of the gun for hire. Jack Wilson, played by Jack Palance, in Shane, brought in by the rancher to run Van Heflin and the other homesteaders off the land. The rules of the game, though, as indicated when he shoots down the character played by Elisha Cook, Jr., involve encouraging (goading) the victim into what may appear on paper as a fair fight, but results in little more than an execution.

• Is he Inspector Javert or Jack Wilson?  Clueless zealot or gun for hire?  I gather more the former, but given his apparent willingness to attack whoever he's asked to, and by whomever asks, I'm not sure the victim can see the difference.

Lebanese Arrest of Israel Spies an Exercise in Hypocrisy and Denial

To paraphrase Casablanca's Captain Renault, the Lebanese government is "shocked, shocked" to find that foreign powers have spies in the country.  An article by Robert Worth in today's NY Times noted that Hezbollah leader Hassan Nasrallah is calling for the death penalty for 21 recently arrested alleged Israeli spies.  The article, in portraying the Lebanese reaction to the event, might have noted the irony, if not the gross hypocrisy, in the fact of the arrest of alleged Israeli spies just weeks after the release of four pro-Syrian generals implicated in the assassination of Lebanese prime minister Rafik Hariri in 2005.  The Lebanese government has apparently complained to the UN about two of the alleged spies escaping across the border into Israel with their families.  Perhaps the Lebanese government might urge the UN instead to more vigorously pursue the investigation into the brazen assassination of their prime minister and members of the government by.  

This bodes ill for the upcoming June 7 elections, and for Lebanon.  The permeation of the Lebanese government by Hezbollah and domination of the country by Iran and Syria are proceeding apace, and the anti-Israel propaganda fueled by these arrests will only serve to distract Lebanese voters from the true threat that they face.

NY Times Coverage of Hamas - Is the Glass Half Full?

Perhaps the problem with the NY Times's coverage of matters pertaining to Israel is not so much the reporting as the headlines and placement of stories.  

A remarkably brief article on the front page of Friday's NY Times (January 9) by Taghreed El-Khodary, entitled, "In a Hospital, Pain, Despair and Defiance," tells of horrific conditions in Shifa Hospital in Gaza.  A 37 year old surgeon has arrived with his daughter as patients, his wife and baby son having been killed by an Israeli response to Hamas's firing of mortar and rockets next to his apartment building.  A smiling 21 year old Islamic Jihad fighter demands immediate attention to the shrapnel in his leg so that he can get back to the fight, despite the obvious presence of far more seriously wounded patients.  He gladly admits that after firing on the Israelis, he and his comrades run into people's houses for safety.  Asked by the reporter why he is so happy amidst the misery, he declares, "They lost their loved ones as martyrs.  They should be happy.  I want to be a martyr, too."

Friday's lead story is not this, but another, entitled "Aid Groups Rebuke Israel Over Conditions in Gaza."

Today's NY Times has a front page story by Steven Erlanger entitled "A Gaza War Full of Traps and Trickery," subtitled "Ruthless and Inventive, Tactics Evolve Fast."  Unclear whether they're talking about the Israelis, Hamas, or both.  Once you read the article you see that the traps, ruthlessness and most of the tricks are practiced by Hamas, "with training from Iran and Hazbollah." "Weapons are hidden in mosques, schoolyards and civilian houses, and the leadership's war room is a bunker beneath Gaza's largest hospital, Israeli intelligence officials say."

Israel is trying some trickery, too.  It is calling Gaza residents and in good Arabic, asking about militant activity nearby.  Also, in response to a Hamas technique of putting civilians on the roofs of military buildings to dissuade Israelis from attacking, Israel sometimes launches dud missiles on empty spots on the roof in order to scare the civilians away.  Very sneaky, those Israelis, trying to trick noncombatants into escaping harm.  This, of course, is after leaflets, e-mails and text messages warning residents to evacuate anticipated battle zones.

Israeli efforts to avoid civilian casualties are imperfect and strongly regretted.  Efforts by Hamas and allied terrorist groups to kill and maim Israeli civilians are also regretted for their imperfection.

Racial Blackmail

I write this on Election Day, and in a few hours, probably before the polls have closed in California, the television news shows will probably have predicted a clear winner; the loser may even have conceded the landslide. But before any of that occurs, I want to get something on the table.

Many have written and spoken about the symbolism of the Obama candidacy. The fact that an African-American could win the nomination of one of the two major parties is a wonderful testament to our nation, our people, our political system. This is the case regardless of the outcome of the general election.

But we have been hearing a number of people in the news and other public figures speak of the necessity of an Obama victory, not only because of his policies and leadership qualities, or of the need to change parties in the White House. Rather, they hold out the prospect that if Obama loses the general election, the United States will be proven to be a racist country run by Dick Cheney, and the American people will be branded as racists.

Consider this exchange between Charlie Rose and Ted Koppel a few weeks ago:

Koppel: It clearly is a change from what our Euro, Asian and Middle Eastern friends regard as the arrogance of the Bush Administration. Whether they are correct in this perception or not I'm not here to argue right now, but that's the way our friends overseas see us. Seeing America with a black president has to change that. Has to.

Rose: You have to take another look at America, a country that could elect this young man at this time, against very powerful and impressive people.

Koppel: They will look at, they have looked at the actions of the Bush administration, this preemptive strike into Iraq, for example, and they assume that he represents the American people in doing this, and we all have been tarred with the same brush. They clearly will have to change their point of view, and if they see an America that is capable of electing an African American, even if there are many millions who are horrified by the notion, it signals that there is a fundamental decency about America that you and I know exists, but that's been a little hard to point out over the last few years.

So America has been the captive of an evil dictator during the past eight years, who was bent on conquering the world and enslaving and torturing innocent muslims and liberals. We, like the innocent Germans of 1945, or the Beefeaters protecting the castle of the wicked witch of the west, can emerge from captivity and be welcomed once again into the community of man. And the only way we can demonstrate that we are really good, the only way to purge ourselves of our collective sins, is to elect our black candidate, Barak Obama.

Unstated by Koppel, but so clearly implied, is that if the white candidate wins the election, it will be a victory for the "very powerful" people whom Charlie Rose sees working against Obama, and the "many millions" of American racists who the enlightened Koppel believes we have yet to purge.

By framing the issue of Obama's candidacy in these terms, we Americans are being effectively blackmailed: Elect Obama, or else be damned by the media and "our Euro, Asian and Middle Eastern friends" as a racist, "fundamentally indecent" country. I'm uncomfortable voting with a gun to my head.

Bronfman Doth Protest Too Much on Obama and Israel

The wealthy Jewish philantropist Edgar Bronfman, Sr. recently created a stir by posting a piece on Huffington Post entitled "Israel's interest is a morally strong America." I haven't provided a link, but you should go take a look at it. In a nutshell, he argues that Israel will benefit from having a US president that is much better liked around the world than George W. Bush and who is not seen as being too one-sided in the conflict between Israel and her neighbors.

We on both sides of the Presidential candidate divide have been engaging in various rationalizations. We McCain supporters have certainly struggled to rationalize his pick of Sarah Palin, and why he remains the better choice despite it. But I'd say that American Jewish supporters of Israel, including Edgar Bronfman, are probably struggling to rationalize their support of Obama with their support for a strong Israel. Clearly, Bronfman has become caught up in the Obama mystique; the seventh paragraph of his piece reads like it was excerpted verbatim from Obama's web page. I really doubt Israel has been the major factor in his decision to support Obama rather than McCain.


I am surprised and a bit disappointed that Bronfman's piece expresses a point of view about Israel and America that reflects the perspective of the outside world, rather than that of America and Israel. He says that Israelis have "felt besieged," as if that were a symptom of paranoia rather than a description of the actual facts. He blames America for all of the hatred and war in the middle east, and seems to believe that America needs redemption because of its evil ways.


There is a feeling around that Obama is good for our foreign policy because he will restore the affection of the world toward the US that George W. Bush alienated; Bronfman echoes this point of view and seems to believe further that it will inure to Israel's benefit. Well, recall that the Arab street rejoiced on September 11, 2001, less than 10 months after Bill Clinton left the White House, and the Europeans' sense of affinity for the US only lasted for around the first 30 days of mourning after the attacks.

Yes, the Bush administration adopted a stridency in its rhetoric and may have believed for a period of time excessively in the viability of an entirely unilateral foreign policy, and I believe that a President McCain or a President Obama will take advantage of a limited opportunity to forge fresh relationships abroad and set a better tone. But in either case we will soon see a remarkable degree of continuity of policies and priorities in foreign affairs: Afghanistan, Iraq and Pakistan, not to mention Iran, will still be just where they were in the previous Administration, and the Arab world will continue to publicly disparage Israel and the US, even as it privately seeks our help in preventing the hegemony of Iran. Neither they, nor Russia and China, will be the least bit influenced by the multicultural background of our new president. Indeed, as Joe Biden so forcefully stated, they are more likely to put Obama to a significant test, perhaps on a large scale. That's good; we need another foreign policy crisis.


Bronfman does seem to acknowledge that perhaps Obama does not have as deep a connection to Israel as we may like, but says, "Whether an American president is prepared to preside over another handshake--one that could build lasting peace--should not be measured by his professed love for one side or the other, but by his judgment." Bronfman comes right out and says that peace between Israel and its neighbors requires an "honest broker that will push both sides," which means a US not perceived as too wholeheartedly siding with Israel in the conflict. We have yet to see a US president who was truly able to push anybody but the Israelis since, after all, what leverage do we have with the other side.


Any American president will be confronted with foreign leaders and domestic foreign policy advisers arguing for a softer pro-Israel stand - not outright abandonment, but a greater degree of acquiescence to the forces seeking to weaken Israel's security. For me, it is all the difference in the world to know that the person sitting in the oval office believes in his gut in Israel's survival, believes in the fundamental goodness of Israel and the necessity of its strength. I think we had that with Reagan and with Bush 43, not with Bush 41. And I think we did OK with Clinton. There's no reason to think that Obama cares much about Israel, and we know that some of his advisers regard it as a net liability for the US and speak with disdain about the Jewish lobby. I'm getting reconciled to Obama becoming our next president, and plan to make the best of it from a pro-Israel perspective. But I think that pro-Israel advocates, and supporters in Congress will have their work cut out for them in an Obama administration.

Same Sex Marriage by Judicial Fiat

If you want to get married in Connecticut, you only need to find a willing priest, minister, rabbi, or judge.  And apparently, if you want to overturn the law of the land as to what marriage means and who is eligible, all you need is to find one willing judge.  

This past Friday the Connecticut Supreme Court ruled by a 4-3 vote that homosexual couples have a right under the state constitution to marry, and that the state's civil union statute -- the first such statute in the country -- granting a full panoply of legal and economic rights to gay couples, violated the state's equal protection clause by denying the official status of marriage to gay couples.

I'm not going to take on the issue of gay marriage, nor will I get into the legal merits of the Connecticut case.  I want to address a larger question that goes beyond same-sex marriage.   Kerrigan v. Commissioner of Public Health involves not an arcane area of administrative law, but a question that goes deep into the gut of American politics.  It brings about a result that both Presidential candidates and their running mates have eschewed, and which, under the "full faith and credit" provision of the US Constitution, might have to be given effect in other states.  (Unless successfully challenged on constitutional grounds, the 2004 federal Defense of Marriage Act permits any state to not recognize a same-sex marriage performed in another state).

The Connecticut case was decided in a split decision, with three judges vigorously dissenting.  I do not believe that a high court should put forth a decision involving significant social, moral or religious consequences other than by a strong majority. Brown v. Board of Education, perhaps the most well-known and lauded court decision of the 20th Century, was unanimously joined by the nine members of the US Supreme Court.  While today we regard its rejection of "separate but equal" as self-evidently correct, it overturned precedent and overcame significant legal arguments and was hardly a preordained result.  Most important, Chief Justice Warren and his colleagues understood that a decision certain to result in deep and far-reaching conflict in the ensuing years must be presented in a united front by the Court.

Even the 1973 Roe v. Wade decision establishing a right to privacy protecting a woman's decision to have an abortion reflected a very strong 7-2 majority.  I would hope that in the event the Supreme Court takes up this controversial issue in the future, those justices who believe, as do many legal scholars, that the 1973 decision rested on shaky legal grounds, would not only be hesitant to overturn what is now long-established precedent, but would in any case ensure that any significant change to the law in this area not be by a narrow 5-4 majority.

This is part of a larger subject, about which I shall write more, namely, the roles that various participants have played in fanning the flames of social and religious conflicts in society being played out among the body politic.  Without arguing the broad proposition of judicial activism, I will say that nothing displays judicial arrogance quite so much as the overturning of the will of the people on a matter of deeply held cultural and societal norms, by a majority of one.

Sarah Palin - A Bridge Too Far?

OK.  I've just surfed my way through the Sunday morning news shows, got the poop on John McCain's selection of Governor Sarah Palin of Alaska.  One thing I can report about the reporters: the roundtable discussions finally got around to asking about Obama and the Democratic convention as a near afterthought near the end of the broadcast.  So one goal was accomplished by the well timed announcement of John McCain's surprise running mate - finally generating some press excitement in what he was up to and pushing Obama off the front page.

Lots of talk about Hillary's women, Reagan Democrats, and the experience issue.  One point I didn't hear addressed, though, is the following:

If I were singly focused on seeing a woman elected President of the United States at the earliest possible moment, my vote would now have to go to John McCain.  If Barack Obama is elected, he will presumably seek a second term, ruling out a woman Democratic candidate until 2016, probably too late for Hillary Clinton to be in the running.  On the other hand, if McCain is elected this year, as a one term President his Vice President will likely be handed the baton to run in 2012, so we have Sarah Palin on the Republican ticket.  And, as Maureen Dowd pointed out in her inimitable way in an August 20 NY Times column, a loss by Obama this year should deliver the 2012 Democratic nomination to Hillary with little more than a perfunctory nod to the competition.

Now that I've got that on the table, let's turn to a few early observations about the new lineup.  

No doubt Sarah Palin will be a person with whom many Americans can identify, who represents values and a way of life that connect to the voters in a way that Barack Obama can not, and who will interest them to a degree that John McCain apparently does not.  She also sits out there now as siren to the Obama campaign, tempting them to utter the challenge of "experience"; each time they do so, they will be clobbered with the fact of their own candidate's dearth of relevant experience for the job he seeks.  Indeed, if anyone's going to learn how to be President while on the job, let it occur while living in the Naval Observatory rather than the White House.

With all of that said, however, I admit to being a bit put off by the apparent fact that the Republicans, and John McCain in particular, think that the race for President can be won merely by putting out the right symbol to the voters.  True, McCain might well perceive that what he is running against is little more than a symbol, so they're only fighting fire with fire.  But as a citizen, I hope that the process by which we choose our leaders will prove itself to be more serious than just another season of American Idol.