The retraction that wasn’t

Four days before publishing the op-ed, Goldstone made a similar claim at a debate we organized at Stanford Law School, stating that “had the Israeli government cooperated…there probably would be important parts of the report that would read very differently.”  No one, including two panelists critical of the report, considered these comments to constitute a retraction – and certainly not a retraction of the whole report as some Israeli leaders are claiming.
 
In his op-ed, Goldstone reconsiders only one of the 36 incidents in the initial report: the tragic deaths of 29 members of the al-Simouni family. He wrote that the “shelling” of the al-Simouni “home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image.”
 
In the debate, Goldstone noted, “with respect to the attack on the al-Simouni home, on the version that’s come out in recent months it seems to me that a war crime was probably committed but…it appears that it may not have been intentional. It might have just been negligence.”

While the Davis Report suggests that the commander knew or should have known that civilians were in the house, Goldstone’s op-ed points to Israeli investigations that “indicate that civilians were not intentionally targeted as a matter of policy.” This is an important, but narrow, revision.
 
Furthermore, the intentional targeting of civilians represents only one of the report’s important findings. The op-ed did not question the report’s findings related to Israel’s failure to distinguish between civilians and combatants, proportionality, obligations to protect civilians, attacks on civilian infrastructure, detentions, and use of white phosphorous. Neither did his op-ed discuss violations of the rights of Palestinians in the West Bank, nor the blockade of Gaza.
 
As a judge, Goldstone would have been explicit had he intended to disavow these claims. Even if he wanted to renounce the report, an opinion piece cannot erase a UN report substantiated by investigations by Amnesty International, Human Rights Watch and the National Lawyers Guild. The other three authors of the report strongly stand by its findings, noting in The Guardian on April 14 that “nothing of substance has appeared that would in any way change the context, findings or conclusions of that report with respect to any of the parties to the Gaza conflict.”
 
Too many commentators disregard the substance of the report and engage instead in shameful personal attacks despite the judge’s history of staunchly defending human rights as an anti-apartheid advocate and leading international criminal prosecutor. It is crucial that the debate shift to protecting civilians in future conflicts, particularly as Israeli-Palestinian violence has ratcheted up this past week.
 
Goldstone notes that the initial report led to several policy changes within the Israel Defense Forces, including limiting the use of white phosphorus near civilians. While this is a positive step, failing to hold the perpetrators of the violence accountable will jeopardize more lives. Unfortunately, Hamas has failed to carry out any investigations into its conduct.
 
Israel has begun criminal investigations, but significant concerns remain about their impartiality and thoroughness. The Davis Report notes that only two cases have yielded convictions. One soldier received seven and a half months for stealing a credit card, while two others inexplicably received suspended sentences of only three months for using a nine-year-old child as a human shield. Furthermore, “there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.”
 
The best hope for impartial consideration of these findings lies with the international community. The Human Rights Council’s overwhelming vote last month to move the Goldstone Report to the General Assembly and eventually the Security Council for referral to the International Criminal Court was an important step towards accountability.
 
The UN should heed calls to investigate and prosecute the war crimes committed in Gaza as it has in Lebanon, Sudan and Libya. Until all parties understand that their actions have legal consequences, history will repeat itself.
 
Catherine Baylin and Omar Shakir are first-year law students at Stanford and organizers of a recent debate at Stanford Law School on the ‘Goldstone Report and the Application of International Law to the Arab-Israeli Conflict’. The video of the debate can be seen in its entirety here.