Comments (0)Judicial Error
October 23, 2009Kenneth Lasson
Special to the Jewish Times
Bullying from the bench is a long tradition in some jurisdictions, but courts are afforded great latitude in deliberations and verdicts, many of which are overturned on appeal. But when a respected jurist pronounces an opinion from on high — even when he or she is dead wrong — people stand up and take notice.
A few years ago, Supreme Court Justice Antonin Scalia declared that there has never been “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.” He was challenging former Justice David Souter’s doubts about the validity of capital punishment in an age when DNA evidence has exonerated many convicted felons.
He must have missed the case of Cameron Todd Willingham, convicted in Texas of an arson that killed his three young children; he was put to death in 2004, after mountains of evidence surfaced proving his innocence beyond a doubt.
Now comes another opinion from on high, this one by Justice Richard Goldstone, formerly of the South African Constitutional Court, chief prosecutor of the International Criminal Tribunals on Yugoslavia and Rwanda, and once a Harvard University faculty member.
“Report of the United Nations Fact Finding Mission on the Gaza Conflict,” known as “The Goldstone Report,” accuses Israel of having engaged in “a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population” in its 2008-2009 war against Hamas.
No one has been tried for war crimes by virtue of this document, but the political ramifications are already enormous — and growing daily as the United Nations debates still more sanctions against the Jewish state. There is little doubt that the U.N. has effectively prejudged Israel and convicted its defense forces of serious violations of international law.
Of the many things wrong with the Goldstone Report, none is more glaring than its attempt to characterize Israel’s response to the Palestinians’ eight-year bombardment of civilians in Sderot and surrounding areas as a war crime. Its claim that there were abuses on both sides is little more than a repetition of the moral-equivalency mantra that has polluted the discourse of peace ever since the misguided Oslo Accords were signed in 1993.
Virtually the moment Israel vacated the Gaza Strip in 2005, Hamas began launching rockets on Sderot. Over the years the barrage increased, until more than one million Israelis were within peril.
When then-Sen. Barack Obama visited Sderot in the summer of 2008, he called the Hamas attacks war crimes. He said, “The first job of any nation state is to protect its citizens. I can assure you that if somebody was sending rockets into my house where my two daughters sleep at night, I’m going to do everything in my power to stop that. And I would expect Israelis to do the same thing.”
Israel protested these attacks to the United Nations, but to no avail. They increased in frequency and range. Under international law, Israel could have responded much sooner, but it forebore. Before finally invading Gaza in December 2008, it warned civilians.
But the U.N. Mission “found no evidence” to support particular allegations about Palestinian violations of international law — a conclusion that simply ignores the ample documentary proof of militants firing from civilian neighborhoods and using human shields in their defense. Videotapes show armed groups directing civilians to areas where attacks were being launched, or forcing them to remain in the vicinity. Palestinian eyewitnesses described firing from hospitals and use of ambulances.
Similarly, the U.N. Mission “found no evidence” of Palestinian fighters dressed in civilian clothes, or of secondary explosions coming from mosques where ammunition had been stored, despite consistent reports by both journalists and eyewitnesses otherwise.
On the other hand, virtually all of the crimes imputed to Israeli forces are based on anecdotal testimony.
The Goldstone Commission purported to review 1,200 photographs, but concludes “it is not reasonably possible to determine whether [the Israeli] photographs show what is alleged.”
The report likewise levels the far-fetched charge that Israel, by striking elements of Gaza’s food and water infrastructure, violated the Convention on the Elimination of All Forms of Discrimination against Women. Nothing is said about the well-documented charges of Palestinians stealing U.N. provisions.
The Goldstone Report thus misses the forest of Middle East geopolitics — with its vast groves of demagogic shiekdoms, distortions of facts and demonizations of Israel — for a few lifeless limbs of biased testimony and bald lies.
Kenneth Lasson, a law professor at the University of Baltimore, writes monthly for the BALTIMORE JEWISH TIMES.