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Opinion | Comment & Analysis

In defence of Justice Richard Goldstone

ARTHUR CHASKALSON AND GEORGE BIZOS: COMMENT - Jan 29 2010 06:00
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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 September 25 2009.

Goldstone was the head of the mission, but there were three other members. They 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 UN Special Representative of the Secretary General on Human Rights Defenders, a member of the UN International Fact-Finding Commission on Darfur, and a member of the Eminent Jurists Panel on Terrorism, Counterterrorism and Human Rights; and

  • Colonel Desmond Travers, a former officer in Ireland's defence forces and a member of the board of directors of the Institute for International Criminal Investigations, which investigates war crimes.


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 is in control of the Gaza Strip. The mandate also required it to review related actions in the entire occupied Palestinian Territory and Israel.

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.

The mission sought the cooperation of the Israeli government, but the Israeli government refused to make any representations to the mission, despite the representations made to it by the mission and the efforts of the UN Human Rights Council. The mission was supported by the Palestinian Authority in the West Bank. 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 NGOs and its secretariat.

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 mission 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 South African Jewish Report (October 30 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?"

CONTINUES BELOW


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

We have known Richard Goldstone as a friend for more than 50 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 Goldstone, who accepted appointment to the Bench in the 1970s and 1980s in the belief that they could keep principles of the law alive. They included Michael Corbett, Simon Kuper, Gerald Friedman, HC Nicholas, George Colman, Solly Miller, John Milne, Andrew Wilson, John Didcott, Laurie Ackermann, Johann 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".

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 from occupying premises reserved for the white group, without enquiring into whether alternative accommodation for such persons was available, was a blow to the apartheid regime and contributed substantially to that legislation becoming unenforceable in 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 the National Institute for Crime Prevention and the Reintegration of Offenders (Nicro), which looks after prisoners who 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; and he intervened so as to allow doctors 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.

Former president FW de Klerk, with the concurrence of the then-president of the African National Congress, Nelson Mandela, appointed 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.

His reports exposed high-ranking officers, who were obliged by De Klerk to resign, and other ­members of the security forces, and he made findings that police had unlawfully shot at unarmed protesters and recommended that they 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 for 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 chairperson of the Wits University 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 Centre for Transitional Justice, the Salzburg Global Seminar and the Centre 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 Centre for Ethics, Justice and Public Life.

In April 2004, he was appointed by the secretary general of the UN to the Independent International Committee, chaired by Paul Volcker, to investigate the Iraq Oil for Food programme. He is co-chairperson of the Human Rights Institute of the International Bar Association. He chaired a UN committee to advise on appropriate steps to preserve of the archives and legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

From August 1994 to September 1996 he served as the chief prosecutor of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda, a post he accepted at the request of then-president 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.

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-defence 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 Goldstone's integrity by some of those who disagree with the mission's report.

Arthur Chaskalson is former chief justice and George Bizos is counsel in the Constitutional Litigation Unit of the Legal Resources Centre
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Comments


The authors ignore the fact that the UN Human Rights Council is well known for its malevolence toward Israel. Most members harbor deep hatred for Israel, and wish for no less than its destruction. Goldstone should have been warned off by the refusal of several people before him to accept the job, including former Irish president Mary Robinson, who is not known as an admirer of Israel. She said:"This is unfortunately a practice by the UN Human Rights Council: adopting resolutions guided not by human rights but by politics. This is very regrettable."
Contary to the authors’ assertion that the mission found that both Israel and Hamas committed violations of international human rights law and international humanitarian law, the report strongly criticizes Israel but the Hamas and its leaders are never accused of responsibility for terrorism and firing rockets. Rather, nebulous "Palestinian armed groups" are responsible.
One would expect that Arthur Chakalson and George Bizos, being lawyers, would immediately reject any judgment passed by a prejudiced court. They should keep in mind that the wording of the resolution establishing the fact-finding UN commission prejudged the outcome of any investigation, by stating that violations of humanitarian law had been committed by Israel.
Also, one of the members of the commission, Professor Christine Chinkin, has been a vociferous critic of Israel and said that it has committed war crimes in Gaza before any investigation had begun. In spite of that she was appointed to the commission.
It is clear that the UN Council targeted Israel and Goldstone delivered it. Which explains why Goldstone is being criticized.
Jacob Amir on January 30, 2010, 10:10 pm
Coming from the Honourable Judge Arthur Chaskalson, who was part of the cover-up at Quattro, this defence may need a little salt.

The two learned ANC supporters have omitted that:
As Chancellor of Wits University, Goldstone encouraged a racist admissions policy, not a good background for someone investigating Human Rights abuses.
He accepted appointment on to a Commission he knew was biased (do Bizos & Chaskalson believe everything they hear on SABC?) [See Amir's post above. That is why the Israel military refused to co-operate]
Goldstone was subsequently forced to admit that (apart from hearing evidence from only one side) the evidence they heard would not stand up in court. Making a judgement based on hostile, unreliable witnesses means Goldstone was either incompetent or biased. Perhaps his two cronies will explain which.

Methinks he was following Stalin or Goebbels more closely than his privileged legal training.
v 3 on February 1, 2010, 9:54 am
This article is long overdue. I find it so disgusting the way people have been deciminating Judge Goldstones reputation for what partaking in an investigation of human rights. He was damned if he did and damned if he didn't from the start. It is simply a concerted attack to discredit someone who in a balanced and fair way made some startling discoveries that Israel would have preferred to cover up.
Thank you Judge Chaskalson and Mr Bizos.
Shaista G on February 4, 2010, 1:56 pm
dgement was a prefixed one that he was gonna punish one side and ignore the other side.

Just like in South Africa and the rest of the Continent the same out there where the downtrodden suffered more in the hands of their liberators than oppressors.

In South Africa operatives handed themselves over to the Boers because they didn`t want t go back because of the attrocities they have seen there and not knowing if when they return will they not be thrown in those notorious exile prison Palestinians are running to South Africa from Hizbollah and Hamas than the Israeli forces and it was a great ommision for him not to investigate as to if the suicide bombers were volunteers or forced operatives.
TIM SINGISWA on March 2, 2010, 10:11 am
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The mandate of the mission investigating the Gaza conflict headed by Judge Richard Goldstone (opposite right) was to enquire whether there was any violation of international law by the Israeli government and Hamas. (Photo: Bernat Armangue/AP)




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