/ 10 February 2010

A sad case of bad faith

Former chief justice Arthur Chaskalson and advocate George Bizos recently defended the record and integrity of their friend Judge Richard Goldstone (“In defence of Justice Richard Goldstone“, January 29). They are, as Goldstone was, giants of the South African Bench and Bar and heroes of the anti-apartheid struggle whom I greatly admire. I agree with them that critics should focus their attention on Goldstone the report and not Goldstone the man.

Chaskalson and Bizos did not, however, address the substance of the report itself, noting simply that “views differ on this”. While understandable (as criticism might undermine their defence of Goldstone’s integrity), this is unfortunate. It could leave one with the impression that they actually approve of the report, although it is likely that they are well aware of its shortcomings. For example, they cite with approval the “trenchant” critique offered by Professor Moshe Halbertal, even though they do not provide his fundamental conclusion that “the Goldstone report as a whole is a terrible document. It is biased and unfair.”

It is also unfortunate because it could leave readers with a false impression of the Goldstone report itself, a massive brief that very few will even try to digest. Chaskalson and Bizos even adopted some mischaracterisations that have taken hold in the press, including that the mission’s official mandate was even-handed and that the report also accuses Hamas of war crimes. (In fact, the report largely exonerates Hamas although it does criticise “armed Palestinian groups” including Hamas’s military wing.)

Goldstone himself has said that he hoped people would judge his report by looking only at its substance and relying on neither its authors’ motives nor their reputations. In focusing on the first distraction Chaskalson and Bizos come very close to succumbing to the second, by emphasising the Goldstone commissioners’ credentials while staying silent on the substance of their product.

The fact is that the Goldstone report is a rushed, shoddy, unfair and indefensible piece of work. Yes, the conflict between Israel and Hamas and other intransigent Palestinian groups has led to enormous suffering, and most of the victims are Palestinians. But the Goldstone report only exacerbates this tragic situation, rewarding and encouraging despicable behaviour.

This is not the place to describe the many major flaws in the report itself. My lengthy letter to Goldstone laying out many of these concerns and Halbertal’s excellent piece are widely available on the internet (see below).

Sadly, Goldstone has declined to respond to these serious criticisms raised by myself and others, even as he has publicly lamented that he has been subjected to ad hominem attacks (which is true) and that nobody has raised substantive issues to which he can respond. Well, perhaps Halbertal and I are both nobodies but I prefer to adopt the rules of engagement that Goldstone applied to Israel and consider his silence to indicate that he has no response to these legitimate criticisms. The Goldstone report is, quite simply, a travesty of justice.

So how could “such a good person” have authored — and defended — such a bad report? Struggling with this conundrum, some have tried to delve into Goldstone’s past to see if he really was such a good person or was rather just an astute political opportunist who knew how to “swim with the tide”. That certainly was not the Richard Goldstone I knew by reputation or in person. But it does not follow that if Goldstone is a decent man, the Goldstone report must be a decent report. It is not. Indeed it is so atrocious that the question of whether it could have been produced in good faith is a valid one.

Bad faith (mala fides) is a serious charge, especially to a lawyer. While not as heinous as falsely accusing someone of mass murder or being a war criminal, there are few things considered more odious than the abuse of power for improper motives. Mistakes, even bad ones, are easily forgiven. Bad faith is not.

It is a valid inquiry to ask how a competent jurist could have produced a document as fundamentally flawed as the Goldstone report, especially given its devastating and foreseeable consequences.

I have resisted entreaties to speculate as to Goldstone’s motives, but battled with this question, especially given his obdurate defence of his report and refusal to address legitimate substantive criticism. I find it hard to believe, as others have suggested, that he would write a libellous report for international glory or in the hope of winning a Nobel Peace Prize.

But there is another possibility. Goldstone, it seems, has long yearned for a world in which no state is above the law, in which civilians everywhere will be protected by international humanitarian law enforced by wise and fair judges at a universally recognised tribunal. That is certainly a wonderful ideal, one to aspire to and work towards.

Of course, we are not there yet, with the human rights organs of the United Nations a comical mockery of justice and the world’s most powerful nations unwilling to sign on to institutions they cannot trust (since they are called upon — and sometimes volunteer whether desired or not — to bear the brunt of protecting modern civilisation).

It may be that, like the (perhaps apocryphal) Soviet boy-martyr Pavlik Morozov, who loved the ideals of communism so much he sacrificed his own parents, Goldstone is willing to sacrifice Israel and his own Jewish people at the altar of his vision of international humanitarian law. Would that be bad faith or a perverse form of good faith? I don’t know. But it is not honest and not just and no good can come of it.

Indeed it is more likely that the lasting value of the Goldstone report will be to serve as an example of how not to conduct an international fact-finding mission.

Trevor Norwitz is a South African practising law in New York and teaching at Columbia Law School. His letter to Judge Goldstone can be found at www.commentarymagazine.com or at www.telfed.org.il/content/trevor-norwitzs-letter-richard-goldstone-response-gaza-report