This article by Richard Landes is cross-posted from Augean Stables.

Judge Richard Goldstone spoke yesterday at Yale in the framework of the George Herbert Walker Bush Jr. Lecture in International Relations. Obviously a most prestigious platform for someone of stature, but inappropriate for a figure who is not only highly controversial, but has done much to marginalize himself, as Noah Pollak and Adam Yoffie pointed out the previous day in the Yale Daily.

The talk did not directly address the “Gaza Fact-finding Mission Report” as Goldstone referred to it, but it did tackle the subject of “Accountability for War Crimes,” and Goldstone brought in Israel on occasion as an example of the issues he raised.

Perhaps the single most striking feature of the talk was its staggering superficiality. Goldstone might have a reputation (at least among those familiar with his report) for being biased, but not for being a lightweight. And yet in the less than forty minutes of his formal lecture, at no point did one get the impression that one was listening to a trained legal mind, much less a brilliant one. Most of the lecture could have been written by an undergraduate who combined entries at Wikipedia on International Law, Nuremberg Trials, Geneva Convention, and Rome Treaty, with a warmed over version of “war is not the answer,” and “why can’t we all just get along and follow the law?”

In the world of academia, where presumably we have high standards, such a mediocre performance - especially when widely praised - attests to a distinct deterioration in academic discourse. That people, like Phillip Weiss (below), can find Goldstone’s presentation “brilliant” and “wise” suggests that we are (once again) in an age of misapplied superlatives, grade inflation, and partisan judgments.

Goldstone’s initial discussion sounded quite reasonable: in order for “universal jurisdiction” to work in a court like the ICC, they have to deal specifically with “grave breaches.” The court has to have credibility, it must be trusted for its fairness, in order for it to work. And in order to gain that kind of credibility, it needs to focus on deeds that are “so shocking to the minds of people that they constitute crimes against humanity.” Proportionality is a matter of judgment, and in such cases, great leeway is given to commanders in the “fog of war” in making such judgments.

So far so good, although I confess I couldn’t figure out from these remarks why he ever took on the Gaza Mission. Could that letter to the Times from Amnesty International signed by three of the four future members of the Gaza Mission, including Goldstone, be a clue? After all, the signatories had expressed how the recent events (not the previous eight years of suicide bombings and rockets aimed at civilians), “have shocked us to the core.” Nothing similar appeared from these signatories at the death of some 20,000 civilians in Sri Lanka only months later, nothing about the millions in Congo. But the Israeli attacks on Gaza, in which, even by the most hostile Palestinian counts, fewer than a thousand civilians were killed, that “shocks to the core.”

I kept thinking to myself, “how could he, with these principles and concerns in mind, have accused Israel of war crimes and possible crimes against humanity”?

That impression was further confirmed when he began his most “interesting” discussion, of the principle of “equality.” Initially, the discussion seemed to reinforce my puzzlement. Equality relates intimately to human dignity: [below is a paraphrase taken from notes, the lecture will be available online in about a week]

…if some are given greater rights, the greater the inequality the greater the indignity… Most if all human rights violations are the product of such indignities… Without dehumanization people don’t commit crimes against humanity; the people who engage in genocide have already dehumanized their targets.

Isn’t this precisely what Elihu Richter and Maurice Ostroff had warned Goldstone about in their memos about the way Hamas operates. How could the man who says this have gone to Gaza and come out without a word about the industry of hatred and dehumanization that rules the public sphere there? Worse yet, how could this man say these things when his own report had allowed and highlighted a Palestinian “witness” accusing Israel of this execrable practice.

Then he took a strange turn (paraphrase):

Equality means that there should not be a different law for powerful and for weak nations: powerful nations like the USA, by refusing to be judged on the same basis as the lesser countries, undermine the credibility of the court… In international relations there should be equal votes, equal vetoes, equal treatment of nations.

Now how he got shifted from a discussion of applying egalitarian rules in the International Criminal Court to challenging the notion that Security Council members have veto rights, and that every country in the UN, dictatorship or not, is to be treated as the equal of countries that actually uphold democratic principles, I’m not quite sure, but it’s quite a segue. I suspect it’s irritation at the way the US can block his report from implementation, but maybe it’s even more “principled” - and therefore even more incomprehensibly foolish.

Indeed, in the midst of this discussion of equality, he made the point that “I have no doubt that the world would be better and more peaceful if everyone did what the UN charter calls for…” In this context he also urged the US to submit to the court “as an example” for the rest of the world. This sophomoric naïveté from someone who has investigated the kind of staggering war crimes that occurred in Rwanda and Bosnia, calls into question either the man’s sanity or his intelligence. In any case, in the framework of the GHWB Jr. Lecture in International Relations, it struck me as an insult to our intelligence.

But once he had the bit in his mouth, he went after the “big and powerful” countries (Israel is among them) who have the nerve to want immunity from international justice. Bush was the worst offender with Boulton as his henchman, undermining the authority of the UN and the ICC. Instead of leading by example, and submitting themselves to international justice, the US acted like a rogue agent. More recently, the Israeli government, claimed Goldstone in a characteristic misrepresentation of his opponents, have claimed that the laws of war should be rewritten so that they can engage in disproportionate responses.

He concluded with some astonishing remarks about what he called “complementarity.” If a nation that subscribes to the jurisdiction of the ICC does its own credible investigation into possible war crimes, then the ICC has no jurisdiction over them. This, he suggested, is the solution to the problem of nations that don’t trust the ICC: they can, by accepting the ICC’s jurisdiction, but doing their own investigation, avoid being called before the ICC. (When asked, in the Q&A session, who decides whether an internal investigation is credible, he responded, “the ICC.”)

He then proceeded to discuss how important it was for the sake of its value to the world community, that the ICC both be, and be seen to be, fair, “objective” (he really used the word), and unbiased… “unlike the people to my right.” (Here he referred to a banner that had been unfurled comparing his Gaza report to the Dreyfus Affair and the Protocols of the Elders of Zion), and refused to continue until it was taken down.

And then it was over. Not one genuine insight, just a long list of platitudes in which he introduced notions that, admittedly, have high levels of “judgment” involved - complementarity and what a “credible investigation” entails, proportionality and what was the justifiable ratio between civilian casualties and legitimate military targets, “objectivity” - and treated them as if they were clear cut principles that could be applied like mathematical principles.

It’s all quite clear he seemed to argue: everyone signs on, everyone plays by the rules, starting with the democracies, and the world is a much better place.

The Q&A was largely critical of him and his treatment of Israel. Phillip Weiss of Mondoweiss was there and has blogged on this in his own inimitable fashion. I append my comments to his:

At Yale, Judge Goldstone faces down his accusers
by PHILIP WEISS on JANUARY 28, 2010

Judge Richard Goldstone gave a speech at Yale last night and though he said he would not be talking about Gaza, his report came up again and again, and in fact the anti-Goldstoners tried to turn the event into a circus. They waved Israeli flags, and two of them held up a banner comparing the judge’s report to the Protocols of the Elders of Zion and the accusers of Dreyfus. A group followed the judge afterward into the wine-and-cheese on the second floor, and surrounded him and some barked at him, and though now and then the judge held up his hand and turned away at a loud voice, he seemed ready for anything, and more than held his own, and left the crowd with an education in what it means to try and advance the regime of international law.

That’s an interesting read of the situation. I was one of those who talked to him, found him fairly reluctant to do more than a single answer to any question, and, for someone used to courtrooms and (presumably) someone capable of taking what he dishes out, surprisingly fragile. In an exchange with me (below) he actually gave a lesson in just how not to advance the regime of international law, but since Phillip shares the good judges blind spots, I don’t suppose he would have picked up on that.

Indeed, Weiss shows himself here to be utterly innocent of some basic (and sound) post-modern principles: in such instances there are no “grand narratives” but multiple ones, and one must consider them all. He shows no understanding of the “other” side, of how people like me might walk away thinking “fool or knave” but not “wise and convincing.” (Or, conversely, someone walking away and thinking, “Well, we sure showed him.”) I for one find Goldstone’s approach a formula for degrading the regime of international law. But Weiss and Goldstone seem to be of the “damn the icebergs, full speed ahead” school.

Goldstone’s references to the report in the actual speech were pointed. It is fine if Israel wishes to evade international investigation and prosecution by doing an investigation of its own. That is a core principle of international law- complementarity- the idea that it is preferable that localities apply international standards law themselves. But that investigation must not be behind closed doors, by the military, it must be open and credible. I will get the actual quotes in a day or two.

He said that equality meant dignity; and when we deny the dignity of other human beings, we dehumanize them, and pave the way to human rights violations. The persecution of Gaza was all through that statement.

Yes, precisely, the “persecution” [sic] of Gaza was all through that statement, although not in the sense that Weiss imagines. (Does he mean Goldstone’s prosecution of the Israelis, the Israelis persecution of Gaza? or Hamas’ largely frustrated persecution of Israel and extensive persecution of Palestinian opponents [not]?) The dehumanization of the “other” in the Arab-Israeli conflict is entirely one way, and comes from the very people Goldstone found so cooperative - Hamas - and constitutes an item that, despite multiple urgings, he failed to investigate.

If militants are attacking you from the roof of a hospital, it does not mean that you can bomb the [whole] hospital; it means that you must take care; and yes maybe some civilians will die when you are going after the militants there, but it violates the principle of proportionality to fire missiles at the hospital. The judge spoke of a hypothetical; but it was a clear reference to the missile attacks on Al Quds Hospital in Gaza City that the Goldstone Report details-though the report never states that there were militants on the roof.

And, typically, the wrong example. (Weiss refers here to ¶466, where the Report accuses the Israelis of deliberately attacking al Quds hospital with white phosphorous, one of the typically misguided passages in the Report, both for its assumption that the phosphorous was used as a weapon rather than an obscurant, and for its belief that the testimony of the hospital staff that Hamas was nowhere to be found is credible.) But if we follow Goldstone’s guidance here, doesn’t that mean that Hamas can therefore set up on hospital roofs and fire unopposed? What are the consequences of this “mercy to the cruel”?

But the real question Goldstone should have raised is: if the enemy leadership has set up its HQ underneath a hospital (al-Shifa) can you wipe them out by bombing the hospital, is that a valuable enough military target to make it worth acquiring despite the deaths of patients and doctors (it would put an end to the war, and possibly save many more future civilian casualties)? I’ll grant you that it’s a judgment call, and I wouldn’t want to be the person deciding either side of the argument, but this dilemma is the issue. And it gets to the heart of Hamas cannibalistic strategy. In any case, clearly this question never occurred to Goldstone since, despite being warned that it happened, it’s a situation he admittedly failed to investigate (¶467).

The Q-and-A was all Gaza. A white-haired professor with an accent said, why should any country, Israel, Serbia, yield power to an international court, when we all know how political such courts can be. Goldstone said it was a great question, then pointed out that such courts can only establish confidence through the steady application of legal processes and the cooperation of the powerful nations. Why, he said, in ‘96 Bill Clinton had specifically asked Nelson Mandela to allow Goldstone to extend his tenure as prosecutor in the international tribunal of the former Yugoslavia, even as American troops were going in there, because Clinton regarded him as a fair judge. (So much for the US congressional resolutions condemning Goldstone, and Obama’s dismissal of the judge; no, it’s Palestine, Jake).

What Goldstone did in Bosnia (and it’s controversial) does not guarantee the work he did in Gaza. The idea that the US Congress has to welcome the latter work because Goldstone had a good reputation from earlier work is a good case of “credibility” by association. Each work deserves its own examination.

A frenetic man at the back got applause when he said that Goldstone’s standards were unequal. What Israel did in Gaza doesn’t come anywhere near what happened in Rwanda, or in other countries that routinely violate the rule of law. Look at Sri Lanka. 20,000 Tamils were killed last year during the sectarian violence. Where is the investigation of that?

That would be me. I think the “frenetic” is because I twice followed up on his answer and continued to challenge him, much to the annoyance of Goldstone’s supporters around me. But I think it’s a telling characterization, because speaking with Goldstone supporters at the reception, I was struck by the constant refrain: “he’s calm and reasoned; his opponents are emotional.”

The question I asked was:

You made a surprising turn in your discussion of equality. From discussing the importance of treating everyone equally to the idea that the big and powerful should not receive special treatment. But you yourself, in an interview with Fareed Zakaria, admitted that what Israel did in Gaza cannot be compared to what went on in Rwanda and Bosnia. So the idea that the “powerful” should be treated “equally” when their crimes are not equal, seems like a strange move, as if you’re overlaying a post-colonial paradigm of the powerful and the weak over a legal paradigm of the vicious criminals and the nations that try and wage war by the rules of the international community. Do you see the distinction? And do you consider the possibility that, in proceeding in this manner, you are undermining the very credibility of the very court whose reputation for fairness you claim is so important to its effectiveness?”

Now I was actually prepared for this topic because Goldstone made the same shift in his interview with Christiane Amanpour, which is the subject of my latest “Dialogue with the Media.” Weiss’ appraisal of Goldstone’s answer is unpredictable only in the sycophantic rhetorical excess.

A good question, and the judge was brilliant. “I recognize the distinction you seem to be making. Similar crimes should be treated similarly” without exception. But that’s in a perfect world. “It’s not going to happen.” If ten murders are committed in New Haven, and only one is prosecuted, the murderer who’s prosecuted can say, I’m treated unequally, nine peole are getting away with it. And “morally and philosophically no one can disagree.” But it’s an “unfair” world. Just because you can’t go after them all doesn’t mean you shouldn’t go after any. The thrust of his remarks was, We will never have a regime of international law until we begin to apply that law, to develop it, and if that means singling out the accessible, well we must do so. And the reference to New Haven reminded us that all law is applied unequally.

Now if Weiss thinks that’s a brilliant answer, it tells us something about his judgment. The analogy is actually silly, in Goldstone’s own terms. It’s not that Israel is one of the murderers and mass rapists along with Sudan, Rwanda, Sri Lanka, Serbia, etc. (Note that Sri Lankans did not hesitate to bomb the whole hospital when they even suspected that Tamil Tigers were hiding there; Israel did not bomb Shifa.)

Morever, as my father points out to me, if the cops knew who the other murderers were and didn’t go after them but instead expended all their energies going after someone guilty of, at worst, involuntary manslaughter, then indeed the victim of this treatment could complain of unfairness, and any impartial observer would find the New Haven police’s procedure dubious at best.

So I followed up on this comment at the reception afterwards. “It’s not ten murderers and you only got one. It’s ten murderers and at best someone guilty of a misdemeanor, using your own yardstick of comparison between what Israel did in Gaza and these other countries have done.”

Goldstone’s response was quite revealing: “I think democracies should be held to a higher standard.”

“But that violates the principles of equality. You end up pursuing people for far less and letting the real criminals off.”

“I think it’s far more shocking when a rabbi or a priest rapes someone than an ordinary citizen.”

This remark is particularly revealing on several different levels:

1) It’s shot through with what Charles Jacobs calls the “Human Rights Complex” - if you want to know what gets the Western “human rights community” exercised, don’t look at the victim or how badly the victim suffers, look at the perpetrators. If they’re white… high dudgeon; if they’re of color… embarrassed silence.” And if the “white guy” is a Jew, then even greater indignation.

2) In this particular case (Goldstone and Israel), I think we’re dealing with a phenomenon of
a kind of disappointed messianic hope. In a sense, he’s saying, “Israel should be a light onto nations, and if it isn’t - more precisely, if the nations don’t see it that way - then they deserve all the opprobrium they get (including mine).”

3) Like his homocides-in-New Haven analogy, it’s fundamentally flawed. If we’re comparing Israel’s behavior in Gaza to Serbian mass rapes as policy in the Balkans, then the proper analogy is “It’s more shocking when a rabbi or a priest makes an advance to one of his congregants, than when an ordinary citizen rapes and murders a woman.” Of course, that would be a ludicrous statement to make. And it illustrates just how far off track the “human rights community” have been taken with their moral equivalence. But Goldstone doesn’t see it.

The question was framed again, sharper this time. A woman with an accent said- and I think there were a ton of Israelis in the hall- Why the double standard? A few million people are killed in Africa, and nothing happens.

The judge was wise and frank. “You know it’s a complex issue… It’s a matter of politics, not of morality. The United Nations has a dominant group of the non-aligned movement, and the issue of the Palestinians has assumed a tremendous importance to them, and they’re using it.”

I like that “wise and frank” comment. In fact, some of us might find these remarks, coming from someone who had just droned on for 40 minutes about high legal and moral principles, frankly hypocritical. It’s politics that Israel gets picked on by a clearly biased UN body that is dominated by a majority of cruel authoritarian regimes who do far worse than she, but, hey, we got to hit somebody… why not Israel?” But if, like Weiss, you share the judge’s animus, no matter how it violates his own principles of equality, why not call it wisdom?

It used to be the South Africans, he said with equanimity. There were many more UN resolutions passed against South Africa than against Israel.

Is he just shooting from the lip? Has he looked at the UN record of resolutions against Israel (including the infamous “Zionism is Racism” resolution of 1974)?

“Humbly may I ask you, why you allow yourself to be used?” the woman said.

“I don’t see it that way at all. I accepted what I regarded to be an evenhanded mandate. I didn’t see myself as being used. I heard exactly the same from the Serb leaders. Why was I allowing myself to be used by an organization set up against Serbia by the United States. You know, beauty is in the eye of the beholder.” Applause from the silent majority.

Upstairs the circle of accusers formed around him near the door. They angrily quoted his own words to him from clippings, or said he was afraid to debate Dershowitz, or said he was publicizing “untruths.” Goldstone’s a man of medium height with a round face and narrow owlish eyes and a calm slightly dour expression. My friend said it’s a face out of a 19th century oil portrait; and the judge did not ever crack- a smile, a wince.

The Orthodox man who had held the banner about Protocols said he would convey the judge’s words to the people of Auschwitz, and the judge turned away. A woman said he was holding Israel to a higher standard, and the judge said that he was, you do that to countries that say they are democracies. When someone said he should call it apartheid, he said that was an emotionally-laden term, so he avoided it-but in fact they did not have separate roadways in South Africa, as Israel does in the West Bank.

Weiss left out the most significant part of this exchange. The rabbi said to Goldstone, “you realize that when these matters are sorted out, the vast majority of your accusations will prove false. What will you do then?” To which Goldstone responded, “I’ll rejoice.”

What? After you’ve done your damage? After you’ve put your imprimatur on a report that proves wrong repeatedly? Figuring out the multiple layers of psychological dysfunction in this response is a job for Shrinkwrapped. The rabbi’s comment: “I feel sorry for you.”

What’s wrong with Phillip Weiss and his hero Richard Goldstone? They have confused their inchoate messianic hopes for a world free of war crimes (and, given how they define the issues, a world free of war) with their commitment to fairness. They forge ahead in pursuit of their fallen heroes (democracies) rather than face the much more daunting prospect of challenging the really nasty players in the drama of crimes against humanity.

Why didn’t Goldstone investigate whether Hamas used Shifa as a HQ? Why didn’t he plan a surprise visit to the hospital and walk the lower floors looking for locked doors? Was he more afraid that he might get kidnapped, than he was that he might be used?

Cowards masquerading as human rights champions… legends in their own minds. The responsibility now fall on us, the silent majority, to wake up.