IN DEFENCE OF JUDGE RICHARD GOLDSTONE BY FORMER CHIEF JUSTICE ARTHUR CHASKALSON AND GEORGE BIZOS COUNSEL IN THE CONSTITUTIONAL LITIGATION UNIT OF THE LEGAL RESOURCES CENTRE

 

We are concerned about the attacks made on the integrity of Justice Richard Goldstone following the report of the United Nations Fact Finding Mission on the Gaza conflict, made public on 25 September 2009. Richard Goldstone was the head of the mission, but there were three other members. The other members were:

 

· Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science;

 

· Ms Hina Jilani, an advocate and human rights activist in Pakistan, who was the United Nations Special Representative of the Secretary-General on Human Rights Defenders, a member of UN International Fact-Finding Commission on Darfur, and a member of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights.

 

· Colonel Desmond Travers a former officer in Irelands’ Defence Forces and a member of the Board of Directors of the Institute for International Criminal Investigations, which investigates war crimes . in of war crimes and mes against

 

The mandate of the mission, whose report was unanimous, was to enquire into whether there were any violations of International Law (which would include International Humanitarian Law and International Human Rights Law) by both the government and army of Israel and by Hamas which was in control of the Gaza strip. The mission interpreted its mandate as requiring it to place the civilian population of the region at the centre of its concerns regarding the protection to which they were entitled under International Law.

 

Hearings were held in Gaza and Geneva. Some critics accuse Goldstone of hearing one side only. However, the mission sought the co-operation of the Israeli government. It refused to make any representations to the mission, despite the representations made to it by the mission and the efforts of the United Nations Human Rights Council. The mission was supported by the Palestinian Authority in the Westbank. Despite Israel’s refusal to make representations the mission considered statements made by senior Israeli politicians, senior officers of its army, documents, photographs and videos submitted to it by various NGO’s and its secretariat.

 

The mission determined that it was required to consider any actions by all parties that may have constituted violations of International Human Rights Law or International Humanitarian Law. The mandate also required it to review related actions in the entire occupied Palestinian Territory and Israel (“paragraph 11 page 14 of the report”). The mission found that both Israel and Hamas committed violations of International Human Rights Law and International Humanitarian Law.

 

It is not our intention to express a view on whether the findings of the commission were correct or not. Views differ on this. Our concern is that Judge Goldstone, an eminent South African judge, has been accused of bias, dishonesty and improper motives in being party to the report of the mission.

 

For instance, Jack Shapiro in the SA Jewish Report 30 October 2009 wrote:

 

“Goldstone became a Nationalist Party judge. In those days only “Nat Boeties” became judges. Did this start the ball rolling? Was this the start of a new career for him? A world personal ambition?”

 

This theme was also advanced in scurrilous emails which were widely circulated attacking his integrity.

 

We have known Richard Goldstone as a friend for more than fifty years, and have followed his career as a colleague at the Bar, as a Judge of the Transvaal Provincial Division, as a Judge of the Appellate Division, and as a Justice of the Constitutional Court. Our answer to Shapiro’s rhetorical question is an emphatic “No”.

 

Not every judge appointed during the apartheid era was a supporter of apartheid. There were a number among them, including Richard Goldstone, who accepted appointment to the bench in the 70s and 80s in the belief that they could keep principles of the law alive. They included Michael Corbett, Simon Kuper, Gerald Friedman, HC Nicholas, George Coleman, Solly Miller, John Milne, Andrew Wilson, John Didcott, Laurie Ackermann, Johan Kriegler and others. There is a considerable body of evidence that they discharged their functions with courage and integrity. This is recognised in the report of the Truth and Reconciliation Commission which observed that “there were always a few lawyers (including judges, teachers and students) who were prepared to break with the norm.” Commenting on such judges, it says “they exercised their discretion in favour of justice and liberty wherever proper and possible. . . . and (the judges, lawyers, teachers and students referred to) were influential enough to be part of the reason why the ideal of a constitutional democracy as the favoured form of government for a future South Africa continued to burn brightly throughout the darkness of the apartheid era.”

 

Richard Goldstone was one of those judges. For instance, his decision in the case of S v Govender in 1986 that no ejectment order should be made against persons disqualified by the Group Areas Act, 1986 from occupying premises reserved for the white group, without enquiring into whether alternative accommodation for such persons was available, was a great blow to the apartheid regime, and contributed substantially to that legislation becoming unenforceable in certain parts of the country. As a judge of the Constitutional Court he concurred in the finding that the first draft of the Constitution of the Republic of South Africa passed by the newly elected Constituent Assembly did not comply in certain respects with the 34 constitutional principles agreed to by the negotiating parties at Codesa.

 

He was the founding chairperson of Nicro, an organisation to look after prisoners that have been released; he exercised his power as a judge (not often used by other judges) to visit prisoners in jail; he insisted on seeing political prisoners indefinitely detained to hear their complaints; to intervene for a doctor to be allowed to see them and where possible to make representations that their release be considered. After the release of Nelson Mandela he played an important role in persuading his colleagues on the bench to accept the inevitable changes that were likely to take place in the political and judicial structures.

 

President De Klerk with the concurrence of the President of the African National Congress, Nelson Mandela appointed Judge Goldstone as the chairperson of the commission to investigate what became known as hit-squads or third force organisations within the army and the police force. His reports exposed high ranking officers who were obliged by President De Klerk to resign, and other members of the security forces, and he made findings that police officers had unlawfully shot at unarmed protestors, and recommended that they should be charged with murder. Threats to his life were made, and his name was on the hit list produced in court as part of the state case against the killers of Chris Hani in 1993.

 

Some who have criticised him say that as a Jew he ought not to have accepted a mandate to enquire into the events in Gaza. We do not agree. Religion and ethnicity are irrelevant to the capacity to judging with integrity. Others ask why he has shown no concern about human rights violations that have been and are being committed elsewhere in the world. This was not part of his mandate as head of the fact finding mission. But his career, from the time he was chairman of the Wits SRC campaigning against the exclusion of black students, to the present time, shows a long commitment to the protection of human rights and a concern for their protection in all parts of the world. He is a member of the boards of Physicians for Human Rights, the International Center for Transitional Justice, the Salzburg Global Seminar, and the Center for Economic and Social Rights. He is a Director of the American Arbitration Association. He chairs the advisory boards of the Institute for Historical Justice and Reconciliation and the Brandeis University Center for Ethics, Justice and Public Life. In April 2004, he was appointed by the Secretary-General of the United Nations to the Independent International Committee, chaired by Paul Volcker, to investigate the Iraq Oil for Food program. He is co-chair of the Human Rights Institute of the International Bar Association. He chaired a UN Committee to advise the United Nations on appropriate steps to preserve of the archives and legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda. From 15 August 1994 to September 1996 he served as the Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, a post he accepted at the request of President Nelson Mandela, who considered it an important affirmation of the post apartheid South African judiciary.

 

He was the chairperson of a high level group of international experts who met in Valencia, Spain, and drafted a Declaration of Human Duties and Responsibilities for the Director General of UNESCO (the Valencia Declaration). From August 1999 until December 2001 he was the chairperson of the International Independent Inquiry on Kosovo. He is a director of the American Arbitration Association. And from 1999 to 2003 he served as a member of the International Group of Advisers of the International Committee of the Red Cross. He has received many prestigious awards in recognition of his commitment to human rights and humanitarian law.

 

One trenchant critic of the report, Moshe Halbertal, has said:

 

“a mere denunciation of the report will not suffice. Israel must establish an independent investigation into the concrete allegations that the report makes. By clearing up these issues, by refuting what can be refuted, and by admitting wrongs when wrongs were done, Israel can establish the legitimacy of its self-defense in the next round, as well as honestly deal with its own failures.”

 

That is a more appropriate critical response to the report of the mission, than the vituperative attacks on Justice Goldstone’s integrity by some of those who disagree with the missions report.

 

Arthur Chaskalson

 

George Bizos

 

Johannesburg

 

21 January 2010

 

 

An Open response to Justice Arthur Chaskalson

and

Advocate George Bizos SC

Copy to Judge Goldstone

From Maurice Ostroff

January 27, 2010

Your defence of Judge Richard Goldstone dated January 21, 2010

Kudos for defending Judge Goldstone's personal reputation; in particular against accusations that he collaborated with the apartheid regime. These accusations are not only irrelevant they are grossly wrong as confirmed by Judge Goldstone's regular visits to political prisoners during the dark days of apartheid. As a low-key anti-apartheid activist when I lived in South Africa, I followed with interest the immensely valuable work of Nicro and I have great admiration for Judge Goldstone's activity for more than 20 years as chairman and president of that organization which provides an invaluable social service.

The ad hominem attacks on the judge don't contribute one iota towards a rational evaluation of the Goldstone Report. However, although you stated that it was not your intention to express a view on the findings of the commission, your strong defence of Judge Goldstone's character may be interpreted by readers as endorsement of the report that goes under his name. But we must be aware that there are times when the quality of a document does not always correlate with the reputation of its author. Even Einstein, mistakenly denied the quantum revolution and in his own words he admitted to frequently making "a sacrifice on the altar of stupidity.”

Similarly, despite Judge Goldstone's eminence, the Goldstone Report is seriously flawed in numerous respects. I quote one example of many

The Report refuses to recognize that among the reasons for civilian casualties in Gaza was the difficulty in distinguishing between combatants and civilians as well as the use by the Gazans of human shields.

Paragraph 477 of the report acknowledges that no less than Mr. Fathi Hammad, a Hamas member of the Palestinian Legislative Council had said publicly that the Palestinian people formed human shields.

It would therefore have been imperative that, while conducting hearings in Gaza, the Fact-finding Mission live up to its name and do its best to establish the facts, at least by interviewing Mr. Hammad about this claim. Instead, the Mission astonishingly acted as his defending counsel in absentia. The Report states "Although the Mission finds this statement morally repugnant, it does not consider it to constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack".

In paragraphs 479 to 481, the Report acknowledges that in general members of Palestinian armed groups did not wear military uniforms, that members of al-Qassam Brigades abandoned military dress and patrolled streets in civilian clothes and that members of the Palestinian armed groups mixed with the civilian population. It then offers the exculpatory qualification on behalf of the Palestinians "there is no evidence that they did so with the intent of shielding themselves”.

And although the Report had made clear that the Israel Government did not cooperate, paragraph 481 makes the unsurprising revelation " on this issue, it is relevant to mention that the Israeli Government has produced no visual or other evidence to support its allegation that Palestinian combatants mingle routinely with civilians in order to cover their movements”.

Similarly, although paragraph 482 states that the Mission found indications that Palestinians launched rockets from urban areas, the Report attempts to mitigate this obvious war crime by stating. "The Mission has not been able to obtain any direct evidence that this was done with the specific intent of shielding the rocket launchers from counterstrokes by the Israeli armed forces".

This mitigation of Palestinian sins appears throughout the Report. In paragraph 483 the Mission finds "the presence of Palestinian armed fighters in urban residential areas during the military operations is established ..While reports reviewed by the Mission credibly indicate that members of Palestinian armed groups were not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack".

Several of your statements that reflect directly on the Mission deserve a right of reply by interested persons. As a citizen of Israel, I am an interested person, directly affected by the outcome of the report and I therefore ask you to please comment publicly on the following observations

1. Members of the mission.
In listing members of the Mission you avoid the objections that have been raised to Professor Christine Chinkin's apparent bias as expressed in a letter published in The Times on January 11, 2009. The letter stated, "Israel's bombardment of Gaza is not self-defence - it's a war crime." and "The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence...Israel's actions amount to aggression, not self-defence".

Surely you will agree with Lord Hewart that justice should not only be done, but should manifestly and undoubtedly be seen to be done and that having publicly pronounced Israel's guilt before any evidence was heard, Professor Chinkin was not eligible to sit on this panel. She would most certainly have been recused from a judicial enquiry and although this Mission was not defined as a judicial enquiry, it most certainly made many judgments on purely legal issues.

2 .Other representations
Your statement that despite Israel’s refusal to make representations, the mission considered statements made among others by various NGO’s is only partially correct.

The impression is created that the Mission did not welcome evidence that conflicted with the preconceived opinions of its members. For example, Judge Goldstone had stated at an early press conference that the Mission would need to rely heavily on expert military opinion. Nevertheless, despite his experience in the type of warfare that took place in Gaza, the Mission rejected my suggestion that Colonel Richard Kemp CBE, former Commander of British forces in Afghanistan, and a senior adviser on army issues to the British government, be invited to give evidence.

However, at the invitation of the NGO UN Watch, Colonel Kemp gave evidence at the UNHRC and from the evidence he presented, there can be no doubt that the Mission's Report would have been substantially enhanced if it had addressed his professional observations, even if it disagreed with them.

See https://www.youtube.com/watch?v=NX6vyT8RzMo

In addition, credible memoranda that the Mission received, containing highly relevant evidence contradicting the findings of the Mission were not addressed in the report, nor were their contents made known to the UNHRC, nor to the GA when these bodies voted on the report. The undisclosed memoranda included video clips showing scenes in Gaza that directly contradict statements in the Report as well as memoranda by Take-a-Pen, Yvonne Green , NGO Monitor, Dr. Elihu Richter, Attorney Ian Lacey, Bnai Brith, Jerusalem Center for Public Affairs and a detailed document carefully prepared by a group of 15 eminent Australian lawyers.

See https://www.youtube.com/watch?v=Rx-CW3UKoIg&feature= and

https://www.youtube.com/watch?v=HLFAJK5LtwY

Even if the members of the mission disagreed with the withheld memoranda, they owed a duty to the UN body to whom they were reporting as well as to the public to address their contents and make the evidence available to whoever may be interested in evaluating it.

I trust that as jurists, you will agree that it was not possible for either the UNHRC or the GA to make valid judgments on the Report in the absence of an opportunity to examine all the relevant evidence.

More egregiously, although Judge Goldstone had agreed to support my request that all memoranda from the public be made available on the Mission's web site, the Mission's secretariat has refused to do so for the reason stated in the following email dated October 24, 2009

"In relation to your query as to whether the submissions made to the United Nations Fact Finding Mission on the Gaza Conflict in response to the Mission's call of 8 June 2009 would be posted on the UNFFMGC webpage, after further reviewing the material, we have concluded that it would not be appropriate to post them. The reason is that some of the submissions include names of individuals who are indicated as sources of some of the information provided, without indication of their consent to be named publicly. In doubt, and out of respect for those individuals, it would not be possible to make such information public. In the circumstances, doing otherwise would be contrary to established practice with regard to source protection. Rather than being selective in posting information, we have preferred to adopt one standard and all submissions will be retained in the Mission's archives, together with all other documentation received by the Mission. It goes without saying that it remains the prerogative of the authors of the submissions that do not present such problems to publicize them as they consider most appropriate. We have already indicated so to those submitting organizations who have inquired about the same matter".

The reason given above by the secretariat directly conflicts with the Mission's public call for submissions which states unambiguously "Unless otherwise indicated by the author, the Mission will assume that submissions can be made public."

3. Evaluating the Report

For any person who is seriously interested in evaluating the entire Report, I strongly recommend the web site "Understanding the Goldstone Report" initiated by Professor Richard Landes of Boston University. http://www.goldstonereport.org/

As eminent jurists you will certainly appreciate the web site's rational approach viz.

"In all our analyses and conclusions, we have adhered to principles of empirical evidence and consistent reasoning. Since the sceptical reader might well accuse us of making up our mind in advance, we emphasize that one should not agree or disagree with us because of how one feels about Israel or the Palestinians, but because of the evidence. We invite readers to examine our arguments without prejudice, make up their own minds and, where they see problems, challenge our arguments. Sweeping and inflammatory rhetoric not welcome."

This letter is being published and I would very much appreciate a considered response which will be similarly published

Sincerely,

Maurice Ostroff