Indeed, in the months since the mission's report was issued, what new independent evidence and analysis was produced reinforced rather than challenged its core findings, but Goldstone mentioned none of this in his article.
Even more, Human Rights Watch produced a report, based in part on discussions with Israeli military officers, only weeks before Goldstone's article lauded Israel for its investigations, which he similarly ignored, which declared that "Israel has failed to demonstrate that it will conduct thorough and impartial investigations into alleged laws-of-war violations by its forces during last year's Gaza conflict ... An independent investigation is needed if perpetrators of abuse, including senior military and political officials who set policies that violated the laws of war, are to be held accountable".
Moreover, what was further claimed in the mission's report, and not denied by Goldstone in this article, was that "collective punishment was intentionally inflicted by the Government of Israel upon the people of the Gaza Strip", which is itself a war crime, according to Article 33 of the Fourth Geneva Convention.
Moving away from the facts
Goldstone's half-hearted but much-publicised attempt to reassess the mission's finding are the first indication that the justice was now operating outside the bounds of objectivity and rules of evidence that guided his work in the past.
While the article might have begun the process of his rehabilitation within the organised Jewish community (it was widely reported on and celebrated in Israel and the US as a vindication of the war), it led to significant criticism by other members of the mission, who took the unprecedented step of publishing a direct rebuke of his article in the Guardian.
In an April 14, 2011 op-ed article they declared that "it is necessary to dispel any impression that subsequent developments have rendered any part of the mission's report unsubstantiated, erroneous or inaccurate. We concur in our view that there is no justification for any demand or expectation for reconsideration of the report as nothing of substance has appeared that would in any way change the context, findings or conclusions of that report".
Their argument was buttressed by reports by B'Tselem and other human rights organisations that appeared around the same time as his op-ed, which backed the original report and went even further in their condemnations of Israeli actions and went into significant detail about the "unlawful destruction" wrought by the Gaza war. They confirmed the report's findings that mass destruction, collective punishment and "humiliation and dehumanisation of the Palestinian population" are viewed in Israeli security doctrine as "a legitimate means to achieve military and political goals".
Apartheid or something else?
The Israeli invasion of Gaza and the continued and ever-growing occupation of the West Bank and Gaza has intensified comparison of Israel's policies in the occupied territories by many Palestinians and international activists to those of apartheid-era South Africa. These accusations are not new, and have in fact been levelled by Israelis against their government's policies for decades.
More infamously for Israel and its supporters, the United Nations passed the "Zionism equals Racism" resolution in 1975, which declared that "Zionism is a form of racism and racial discrimination" and specifically declared its origin and structure to be linked to that of the apartheid government in South Africa.
The resolution was problematic in many respects. These included its application of the term "race" to an ethno-territorial conflict, as well as its uncritical lumping together of the treatment of Palestinians on both sides of the Green Line. More broadly, the resolution singled out Israel for treatment of minority and occupied peoples that was no different from the way a host of other UN member states treated various groups under their control.
But its claim that Israel and South Africa shared a "common imperialist origin", while simplistic and inaccurate in many ways, does have some historical grounding. Both Afrikaaner and Zionist nationalisms evolved as European settler colonial movements which sought to gain control over territory while displacing and then controlling the existing inhabitants, and both had ambivalent relationships with the imperial power - in this case, the British - under whose rule they lived before achieving independence.
Moreover, as Israel's occupation of the West Bank and Gaza intensified, the territorial, economic and political matrix of control imposed by Israel upon the occupied territories (which was not yet fully in place in 1975) grew to include not just the systematic expropriation of territory and displacement of Palestinians, but the forced constriction of movement and limitations on employment, restrictions on marriages and unlawful treatment of the occupied population in a host of ways which the Gaza war merely magnified rather than taking to a whole new level.
These policies clearly resemble in myriad ways the strategies of control used by the apartheid-era South African governments.
Because of this, it's not surprising that many South African activists and politicians, including Desmund Tutu and Nelson Mandela, have harshly criticised Israel's policies as resembling and even exceeding those suffered by South African blacks under apartheid. Indeed, many South African Jews who participated in the anti-apartheid struggles have made similar claims, including activists such as Denis Goldberg and Ronnie Kasrils, who after a 2004 visit to the occupied territories declared that the occupation "makes apartheid look like a picnic".
"We never had jets attacking our townships. We never had sieges that lasted month after month. We never had tanks destroying houses. We had armoured vehicles and police using small arms to shoot people - but not on this scale."
Neither Kasrils nor Goldberg are very invested in the South African Jewish community, whose vehemence in facing down critics of Israel "rivals" its US counterpart, according to the South African scholar I quoted above. But with an organisation named the Russell Tribunal, modelled on the People's Tribunal on Vietnam established by the late philosopher Bertrand Russell, about to hold another half a dozen or so sessions on the Israeli occupation, this time in South Africa, it appears that Justice Goldstone was called upon, or felt compelled, again to step into the field of battle to defend Israel.
And so, in a November 1 op-ed in the New York Times, "Israel and the Apartheid Slander", he did just that, arguing that comparisons between Israel and apartheid-era South Africa are "pernicious", and an "unfair and inaccurate slander against Israel, calculated to retard rather than advance peace negotiations".
The language and discourse of the article reveal much about the state of the art of Israeli hasbara, or propaganda, not because Goldstone might have been advised on what points to make by Israeli spin doctors but rather precisely because the thinking is clearly his own.
To begin with, Goldstone tags his article to the weeks-old UN General Assembly vote to recognise Palestine, declaring that "the Palestinian Authority’s request for full United Nations membership has put hope for any two-state solution under increasing pressure".
Not Israel's ever-increasing settlements (even more of which were announced the day the article was published), not blanket US support for Israel, not even continued violence by Palestinian militants. Just the attempt to gain recognition as a state is for Goldstone the biggest threat to peace.
He then argues that:
"In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute: 'Inhumane acts ... committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.' Israeli Arabs - 20 per cent of Israel's population - vote, have political parties and representatives in the Knesset and occupy positions of acclaim, including on its Supreme Court. Arab patients lie alongside Jewish patients in Israeli hospitals, receiving identical treatment."
Of course, Goldstone is right about the relative status of Israel's Palestinian citizens, but no serious comparison of Israel with apartheid-era South Africa focuses on the treatment of Palestinian citizens, as undemocratic as it has been in many areas. Instead, the focus has been on the occupation. Indeed, the Bertrand Russell Tribunal describes its focus as on "the ongoing occupation of Palestinian territories by Israel". Of course, as Israel increases repression against its Palestinian citizens, the analogy begins to hold more water within Israel as well.
When he does turn to the West Bank, Goldstone argues that the situation is "more complex" than in Israel. "But here too there is no intent to maintain 'an institutionalised regime of systematic oppression and domination by one racial group'." For Goldstone "this is a critical distinction" - that is, that Palestinians are not a distinct racial group, and so Israel's policies cannot be compared to apartheid.
Here Goldstone's analysis is based on a very outdated notion of race, as some sort of distinct biological construct which is different in essence from ethnicity or other markers of communal separateness (even though elsewhere in the piece he uses them interchangeably). In reality, race is a political construct, one that is intimately tied to power and territory - specifically to the power of certain groups to control territory and through it control who has the right to live and work within a given territory.
To argue that Palestinians are not a "race" and therefore Israel isn't practicing apartheid-like policies is intellectually sloppy, especially coming from a jurist of Goldstone's stature.
Even more so when the Rome Statute cited by him defines crimes against humanity, of which apartheid is a component, as involving not merely persecution or violence based on race, but instead on "political, racial, national, ethnic, cultural, religious, or other grounds". If he wished to argue that Israeli policies are not technically apartheid because they are not "racially" motivated, the very definition he deploys to support his argument merely supports the argument that they fall under the broader category of crimes against humanity.
Agreeing in concept, settling in reality
Justice Goldstone's argument falls further from reality when he claims that "even if Israel acts oppressively toward Palestinians ... Israel has agreed in concept to the existence of a Palestinian state in Gaza and almost all of the West Bank, and is calling for the Palestinians to negotiate the parameters".
This argument could charitably be described as disingenuous. The phrase "agreeing in concept" is literally meaningless, as Israel has long signed onto agreements that it has then violated - this is in fact a good summary of the history of the Oslo peace process, as I and other scholars have documented. One can only imagine Justice Goldstone's response if a lawyer tried to use similar language in his courtroom.
Finally, Justice Goldstone returns to two of the most prominent themes used by Israel's defenders: Its actions are defensive and the result of Palestinian provocations, and, in case that argument isn't persuasive, that both sides are ultimately to blame for the endless cycles of violence:
"But until there is a two-state peace, or at least as long as Israel's citizens remain under threat of attacks from the West Bank and Gaza, Israel will see roadblocks and similar measures as necessary for self-defence, even as Palestinians feel oppressed. As things stand, attacks from one side are met by counterattacks from the other. And the deep disputes, claims and counterclaims are only hardened when the offensive analogy of "apartheid" is invoked."
In other words, Israel's policies of closures, roadblocks and the "security" (for much of the world, "apartheid") wall have nothing to do with gaining and cementing control over Palestinian territory, but instead are purely defensive in nature. This is blatantly inaccurate, as the geography of the matrix of control makes clear . In fact, the original report states specifically in paragraph 92 that "in the West Bank, Israel has long imposed a system of restrictions on movement", and that it could not meet with many Palestinian experts because of these ongoing restrictions.
The claim that both sides are ultimately to blame for the ongoing violence is equally problematic. Hamas can and should be called to account for its terrorist actions against Jews and a host of crimes it has committed against Palestinians. But the ultimate responsibility for the violence and decades-long systematic violations of human rights in the Occupied Territories is Israel's, both as the recognised belligerent occupier of the territories, and as the perpetrator of the vast majority of the violence on the ground.
It's important to note here that Israel could in fact have occupied the West Bank and Gaza in 1967 and continued the military occupation to this day under the justification of protecting the security of its citizens, within the framework of international law.
It could have done so, however, only if it never established a single settlement, or bypass road or seized and/or destroyed huge swaths of Palestinian property and territory - that is, if it maintained a purely military occupation that did little to disturb the daily life and natural development of the occupied population.
But the occupation has never been about security, it's been about settlement, pure and simple.
And as long as the occupation remains essentially a settlement enterprise, analogies between Israeli policies in the occupied territories and apartheid South Africa will be accurate, no matter how hard Israel's supporters, even when they are as eminent as Justice Goldstone, try to deny this reality.
Mark LeVine is a professor of history at UC Irvine and senior visiting researcher
