1 -A CRITIQUE OF SELF-APOTHEOSIS - GOLDSTONE : A CRITIQUE OF SELF-APOTHEOSIS Ayal Rosenberg Friday, October 09, 2009 “I see a spectacle so rich in meaning and so wonderfully paradoxical to boot, that it would be enough to make all the gods of Olympus rock with immortal laughter – Caesar Borgia as Pope.” Nietzsche (The Twilight of Idols – The Anti Christ – chapter 61) INTRODUCTION Richard Goldstone published the findings of his UN Human Rights Commission investigation into the belligerency between the parties during hostilities in the recent Gaza-Israel war (December 2008 and January 2009) to a media fan-fare – sensationalism has always been one of his characteristic calling cards. Time after time, Goldstone was introduced as an eminent South African jurist, as a man who fought against apartheid, as a paragon of international law and principle, a man of “high credibility” and “high integrity” 1 . Event the South African Zionist Federation joined in the Pied Piper procession singing the same tune. When, within the very cathedral of the UN Human Rights Council in Geneva, , Anne Bayefsky accused Goldstone of humbuggery, he flanked by Navi Pillay, the head of the Human Rights Commission, replied that he was used to abuse and that during apartheid whites had abused him for speaking out against apartheid injustices. Navi Pillay, an Indian who grew up in apartheid South Africa, a lawyer who had practices in South Africa during its darkest days, sat through this and kept a straight face mimicking Goldstone’s feigned indignation. 1 According to Swedish Foreign Minister Carl Bildt: http://www.jpost.com/servlet/Satellite?cid=1254861899900&pagename=JPost%2FJPArticle%2FShowFull
Ayal Rosenberg wrote this in-depth article in respond to Goldstone report of war crimes in Israel
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1 -A CRITIQUE OF SELF-APOTHEOSIS -
GOLDSTONE : A CRITIQUE OF SELF-APOTHEOSIS
Ayal Rosenberg
Friday, October 09, 2009
“I see a spectacle so rich in meaning and so wonderfully paradoxical to boot, that it would be
enough to make all the gods of Olympus rock with immortal laughter – Caesar Borgia as Pope.”
Nietzsche (The Twilight of Idols – The Anti Christ – chapter 61)
INTRODUCTION
Richard Goldstone published the findings of his UN Human Rights Commission investigation
into the belligerency between the parties during hostilities in the recent Gaza-Israel war
(December 2008 and January 2009) to a media fan-fare – sensationalism has always been one
of his characteristic calling cards. Time after time, Goldstone was introduced as an eminent
South African jurist, as a man who fought against apartheid, as a paragon of international law
and principle, a man of “high credibility” and “high integrity”1. Event the South African Zionist
Federation joined in the Pied Piper procession singing the same tune. When, within the very
cathedral of the UN Human Rights Council in Geneva, , Anne Bayefsky accused Goldstone of
humbuggery, he flanked by Navi Pillay, the head of the Human Rights Commission, replied that
he was used to abuse and that during apartheid whites had abused him for speaking out against
apartheid injustices. Navi Pillay, an Indian who grew up in apartheid South Africa, a lawyer who
had practices in South Africa during its darkest days, sat through this and kept a straight face
mimicking Goldstone’s feigned indignation.
1 According to Swedish Foreign Minister Carl Bildt:
In 1980, when Goldstone was appointed an apartheid judge, I was about to enter the Wits law
school, where Goldstone himself had learned law. I was taught law by the likes Professor
Dugard, Justice Edwin Cameron, Professor Van der Vyfer and Professor David Dyzenhaus to
name a few. I had been taught exactly what apartheid was and who apartheid judges were. The
specter of Richard Goldstone preening to the world media as a man of principle, as man
demanding accountability, as a bulwark against apartheid is slap in the face to every victim of
apartheid, living or dead.
Goldstone claims, over and over (the scale and frequency of self adulation in itself should set
off alarm bells) that his report is all about accountability for crimes against humanity and the
integrity of international humanitarian law. This is a subterfuge coming from a subtle and
fraudulent apartheid judge. As far as Goldstone is concerned the report, as everything else in
his life, is about self: self-conceit; self-aggrandizement; self-praise; self-righteousness; self-
worth; self-adulation and, most importantly, self-promotion.
I would not have written this article if my sole purpose was to expose Goldstone. A man of his
ilk is not worth my time of day. On the other hand, without accountability from the
perpetrators of human right abuses there will never be respect for human rights. The UN
Human Rights Council is the appropriate institution to demand such accountability. But if
apartheid taught me anything – and I lived through it when Goldstone lived off it - it was that
respected institutions can be infiltrated by ideologues. Justice is then defined and applied from
the very pulpit of such institutions by the unscrupulous, the ambitious, the racist and even the
psychopathic. Under apartheid the rule of law was hijacked by brutality, the courts dispensed
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discrimination in the name of justice and the judge’s who applied this law, who, especially in
the Appellate Division, were the spear tip in the heart of apartheid’s victims, masqueraded as
paragons of virtue.
When viewed from this perspective it became clear to me that it was not so much the
culpability of either the Palestinians or the Israelis which was worrying but rather the obscenity
of man like Richard Goldstone presiding over enquiries into crimes against humanity and at the
same time demanding accountability.
By shifting the focus I do not want to exonerate either the Israelis or the Palestinians for
possible crimes against humanity. Indeed, such culpability should be investigated and
vigorously prosecuted if there is evidence of such crimes, not only in the Israeli Palestinian
conflict but in all conflicts. Human right violations should not be subject to super-power vetoes
or Human Right Council majorities or political agendas. Most importantly, the investigators of
such violations should at the very least be moral men and women and not moralists. Under no
circumstances should an investigation into possible human rights abuses be conducted by a
man who is himself guilty of the very crimes he is investigating.
If a man like Goldstone can head a Human Rights Commission, if he can become a prosecutor of
war crimes at the behest of the International Criminal Court, then human rights becomes a
weapon in the hands of its worst abusers.
I am making a few fundamental assumptions. Apartheid was a crime against humanity; like
Nazism and Stalinism, it polluted language and law lending an aura of respectability to the
despicable thereby facilitating willing and unwilling obedience to the criminal. The enablers of
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atrocity are the banal, the ordinary, the uninspiring – drab and dull men. Alain Finkelkraut has
observed:
“But the true executors of the holocaust, making it possible despite its enormity, were
the farthest things from perverts: they were model functionaries. Think of Eichmann or
Rudolph Hess, Commandant of Auschwitz: while the Jews new barbarism only by its
beastly face and still expected violent rage, these bureaucrats dispatched their victims
with a ferocity that was neutral, administrative, dispassionate and routine…It was the
banalization of the crime that was inconceivable: the dull, methodical and continuous
terror that the Nazis were about to make them endure…In fact the most pitiless acts of
inhumanity were committed by the most utterly ordinary men.”2
Lastly, the crime of apartheid would not have been possible without a willing and compliant
bureaucracy; the higher up the servant of the apartheid state bureaucracy, the greater his or
her contribution to perpetuating the crime. At the pinnacle of the apartheid bureaucracy, giving
it the aura of legitimacy it required for its very life breath, were the judges and especially the
Appellate Court judge.
Time, gullibility, ignorance, sensation, political, religious and personal agenda, and, most tragic
of all, abuse of Nelson Mandela’s magnanimous gesture of forgiveness, has allowed for the
revision of history, indeed for its reversal. I will therefore spell out the historical evidence and
the legal precedent. Given the gullibility, maybe ignorance, of no less than the like of the
Swedish Foreign Minister Carl Bildt the facts need repeating.
2 The Imaginary Jew – pg 48-9
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Before proceeding to the evidence and the law I must dispose of a seeming anomaly: the notion
that a perceived champion of human rights, a man who was a prosecutor for the International
Criminal Court, a man who sits on the Board of Directors of Human Rights Watch, cannot in
reality be a systematic abuser of human rights and a perpetrator of crimes against humanity.
Major General Iona Timofeevich Nikitchenko presided over Stalin’s show trials during the Terror
of 1936-1938. According to estimates made by Robert Conquest3 (which were subsequently
vindicated by the opening of the Soviet Union archives), Nikitchenko adjudicated a process in
which there were 7 million arrests, 1 million executions, 8 million banishments to camps and 2
million deaths in pensal camps. This same Nikitchenko was one of the drafters of the London
Charter that set up the Nuremberg process. Moreover, Nikitchenko was an “eminent”,
“respected”, “illustrious” Judge at Nuremberg with “high integrity” and “high respectability”.
Tzvetan Todorov has commented: “It is true that at the Nuremberg trials Stalin’s
representatives sat in judgment over Hitler’s colleagues: a particular obscene situation, since the
judges were guilty of crimes as horrible as those of the accused.”4
NUREMBERG
The criminal culpability for crimes against humanity of judges enforcing law within an
“organized system of injustice” was established in The Justice Case of the Nuremberg Trials:
3 The Great Terror – pg 485
4 Home and Memory: Reflections on the Twentieth Century – pg 207
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United State of America vs. Alsotter et al5. The movie Judgment At Nuremberg was based on
this trial.
The Justice Trial was against sixteen defendants, all judges or judicial officers who served at the
behest of the Third Reich. Ten of the defendants were convicted for crimes against humanity,
and four were acquitted, one died before the verdict was handed down and there was one
mistrial.
Relevant portions of the indictment read as follows:
“Between September 1939 and April 1945 all of the defendants herein unlawfully,
willfully and knowingly committed crimes against humanity as defined by Control
Council Law 10, in that they were principals in, accessories to, ordered, abetted, took a
consenting part in, and were connected with plans and enterprises involving the
commission of atrocities and offenses, including but not limited to murder,
extermination, enslavement, deportation, illegal imprisonment, torture, persecution on
political, racial and religious grounds, ill treatment of and other inhumane acts against
German civilians and nationals of occupied countries.”
5 3 TWC 1 (1948), 6 LRTWC 1 (1948), 14 Ann Dig. 278 (1948)). The entire court protocol and decision is available online at http://www.mazal.org/archive/nmt/03/NMT03-T0001.htm to http://www.mazal.org/archive/nmt/03/NMT03-T1236.htm
“The German criminal laws through a series of additions, expansions, and perversions by
the defendants became a powerful weapon for the subjugation of the German people
and for the extermination of certain nationls of the occupied territories.”
In his opening statement to the Court, the Prosecutor, Brigadier General Telford Taylor, said:
“This case is unusual in that the defendants are charged with crimes committed in the
name of the law. These men together with their deceased or fugitive colleagues were the
embodiment of what passed for justice in the Third Reich.”
“The defendants and their colleagues distorted, perverted and finally accomplished the
overthrow of justice and law in Germany…The ‘trials’ they conducted became horrible
farces, with vestigial remnants of legal procedure which only served to mock the hapless
victims.”
Most of the defendants raised the defense that they were only applying the law which at the
time was not only legal but actually the binding law of the land. The Court dismissed this
defense and held that for culpability all that was required was that each defendant
“…knew or should have known that in matters of international concern he was guilty of
participation in a nationally organized system of injustice and persecution shocking to
the moral sense of mankind. The charge in brief is that of conscious participation in a
nationwide government organized system of cruelty and injustice in violation of the
laws of war and of humanity, and perpetrated in the name of the law by the authority
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of the ministry of Justice, and through the instrumentality of the courts. The dagger of
the assassin was concealed beneath the robe of the jurist.” [Emphasis AR]
The Nuremberg court distinguished between two types of defendants. There were those who
“with fanatical zeal enforced the will of the Party with severity”. The guilt of these was clear and
obvious. Then there were the judges who desperately tried to “retain ideals of judicial
independence and who administered justice with a measure of impartiality and moderation.”
The guilt of this type of judge was painstakingly difficult to determine. Such a judge was the
defendant Franz Schlegelberger.
Schelgelberger was born on October 1875 in Koenigsberg and appointed a judge of the District
Court of Lyck in 1901, nearly 30 years before the advent of Nazism. During this period, not only
did he distinguish himself as an eminent jurist but wrote a dozen internationally acclaimed
books on jurisprudence. In October 1931 Shlegelberger was appointed Secretary of State in the
Reich Ministry of Justice and in January 1941 he was put in charge of the Reich Ministry of
Justice as Administrative Secretary of State. In August 1942 Schlegelberger resigned from the
Ministry and effectively ceased being a Nazi judge.
From the evidence it was clear that Schlegelberger was a reluctant Nazi. He only joined the Nazi
Party in 1938 because Hitler forced him to do so but he never went to any party meetings and
he discouraged his family from becoming Nazis; indeed none of them ever joined the Nazi
Party. In his defense Schlegelberger claimed that he “could never have either favoured or
permitted principles of violent thinking” and that, on the contrary “all of his activities were
aimed at preventing or at least modifying the course set by Hitler’s dictatorship.” (This is the
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exact claim that Goldstone would make when surveying his own sorry legacy.) The Court found
that Schelgelberger’s factual assertions about himself were true including the claim that he
resigned of his own accord because he could no longer support a system that was manifestly
unjust.
The Court described one of Schlegelberger’s defenses in this way:
“Schlegelberger presents an interesting defense, which is also claimed in some measure
by most of the defendants. He asserts that the administration of justice was under
persistent assault by Himmler and other advocates of the police state. This is true. He
contends that if the functions of the administration of justice were usurped by the
lawless forces under Hitler and Himmler, the last state of the nation would be worse
than the first. He feared that if he were to resign, a worse man would take his place. As
events proved, there is much truth in this also.
There seemed nothing to contradict Schlegelberger’s that he was fundamentally a decent,
honest man who, through no choice of his own, found himself serving an unjust system. The
Schlgelberger case was an extremely difficult one and the Court agonized in its deliberations
concerning his culpability in law for crimes against humanity. In the end, the Court held:
“The prostitution of the judicial system for the accomplishment of criminal ends involves
an element of evil to the State which is not found in frank atrocities which do not sully
judicial robes”
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“Schlegelberger resigned. The cruelties of the system which he helped to develop was
too much for him, but he resigned too late. The damage was done. If the judiciary could
slay their thousands, why couldn’t the police slay their tens of thousands? The
consequences which Schlegelberger feared were realized. The police, aided by Thierack,
prevailed. Schlegelberger had failed. His hesitant injustices no longer satisfied the
demands of the hour. He retired under fire”
“We are under no misapprehension. Schlegelberger is a tragic character. He loved the
life of the intellect, the work of the scholar. We believe he loathed the evil he did, but he
sold that intellect and that scholarship to Hitler for a mass of political pottage and for
the vain hope of personal security. He is guilty under counts two and three of the
indictment.”
The legal principles arising from the Nuremberg Justice Case were codified in the Rome Statute
which is the founding document of the International Criminal Court. The culpability of a willing
judge within an inherently unjust system is covered by the Statute’s declaration that
“individual criminal liability will be incurred in crimes against humanity and war crimes by a
person…who knowingly aids, abets and otherwise assists, directly and substantially in
commission of such a crime, including the means for its commission.”
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APARTHEID
In his speech from the dock in 1962, Nelson Mandela said6:
“I would say that the whole life of any thinking African in this country is driven
continuously to conflict between his conscience on the one hand and the law on the
other…The law as it is applied, the law as it has been developed over a long period of
history, and especially the law as it is written by the Nationalist Government is a law
which in our view is immoral, unjust and intolerable. Our consciences dictate that we
must protest against it, that we must oppose it and that we must attempt to alter it.”
Apartheid as practiced in South Africa between 1960 to 1994 was a “nationally organized
system of injustice” as defined in the Nuremberg Justice Case. In fact, apartheid was definitively
classified as a “crime against humanity” in the International Convention on the Suppression and
Punishment of the Crime of Apartheid7 which was enforced on 18 July 1976. Article 1 of the
Convention declares that “apartheid is a crime against humanity and that inhuman acts
resulting from the policies and practices of apartheid and similar policies of racial segregation
and discrimination…are crimes violating the principles of international law.” In language similar
to the Rome Statute Article 3 of the Convention imputes criminal responsibility “irrespective of
the motive involved, to individuals….and representatives of the State whenever they….directly
6 Most of the quotes come from the TRC Report on Legal Establishment which is part of the TRC Final Report
Volume 4 Chapter 4 (pg 93-108)which available on line at http://www.justice.gov.za/trc/report/finalreport/Volume%204.pdf TRC Justice Hearing Volume 4 Chapter 4 (pg 93-108) 7 UN General Assembly Resolution 3068(XXVIII) of 30 November 1973
covert torture and death squad, the apartheid equivalent of the Nazi Einsatzgruppen, who, in
Botha’s own words “must be willing to be unpopular and even feared.”16
Schelgelberger had sold his soul to Hitler for “a mass of political pottage”; Goldstone had sold
his to PW Botha. Now his career could really take off. Leap-frogging more elderly judges, who
were also more qualified jurists, Goldstone was earmarked for the Appellate division – the
ultimate payback of the apartheid overlords to their most slavish judicial lackeys.
In January 1989 PW Botha suffered a minor stroke, Goldstone was nominated to the Appellate
Court and FW De Klerk took over as President of South Africa.
APARTHEID, GOLDSTONE AND FW DE KLERK
The five year period between 1989 and 1994 were the De Klerk years. Much happened in this
tempestuous and volatile period. De Klerk initially thought he could palliate the inevitable. Then
Communism collapsed under the weight of its own anomalies. Once De Klerk decided to push
the tottering anachronism he and his regime were forced to deal with overwhelming
challenges. They had to dismantle the apartheid laws. They had to legitimate the erstwhile
illegitimate opposition, the most vociferous of whom would soon be leaders of the country.
They had to keep a lid on the violence wracking the country. Foremost in their minds, they had
to negotiate their own immunity. Put bluntly they had to save their own skins and, if in the
process, justice and truth had to be sacrificed on the altar of expediency and polity then so be
it.
16
TRC Report Volume 2 – para 52 pg. 178
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De Klerk was desperate for a clean bill of health and Goldstone would be instrumental in
providing it. He had learned from being the obedient servant of PW Botha that if he served his
political master well then he could exact any reward of his chosing.
Notwithstanding De Klerk’s decision to expedite the demise of the already dying apartheid, the
old repressions and excesses were rampant. There were still detentions without trial and
torture but, thankfully, there had not been a Biko style death in detention since 1988. Then,
only 12 days before Nelson Mandela was scheduled to be released, in January 1990 Clayton
Sizwe Sithole was found hanging by a belt and shoelaces from a water pipe in the shower while
under police detention (without trial). The seriousness of the death of Sithole cannot be
underestimated.
Sithole was the partner of Zinzi Mandela and the father of Nelson Mandela’s grandson. It was
clear that Sithole had died as a result of an illegal, unjust detention and as a consequence of
cruel and sustained torture. Sithole might have hung himself (and – no thanks to Goldstone –
we might never know the truth) but there was no denying he was driven to it by torture. At a
time so close to Mandela’s release, De Klerk obsessed about securing his own immunity and
that of the entire apartheid gang. He desperately needed exoneration of the police and, by
extension, of himself.
The numerous previous deaths in detention under apartheid, beginning with Biko, had been
emblematic and symbolic of apartheid in all its barbarity. There was a wide spread hope that
apartheid in its death throes would at last demonstrate the sincerity of its claim to have
changed its ways and show moral fiber by exposing the truth and exacting accountability. A
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judicial commission of enquiry to Sithole’s death was called for and De Klerk obliged. The
victims of apartheid, those in the vanguard of the struggle day in a day out, the relatives of all
those countless who had been murdered and tortured in detention in the past, all pinned high
hopes on Goldstone, whom De Klerk appointed to head up the enquiry into Sithole’s death
If justice, the evidence and common decency all pointed to the guilt of the apartheid machinery
in the death of Sizwe Sithole, this was nothing in comparison to the demands of De Klerk for
complete exoneration. Goldstone delivered the goods as De Klerk knew he would. To the shock
and consternation of all those involved (by and large the travesty of the matter was drowned in
maelstrom of the upheavals wracking the country at the time) Goldstone exonerated the
security forces completely and totally. He found that Sithole had hanged himself and that the
police had had no part in his death. Goldstone decided that Sithole gad hanged himself with a
belt and shoelaces even though the police had earlier testified that his belt and shoelaces had
been taken away from him when he was incarcerated. De Klerk wanted to shift the blame away
from himself and to the Mandela circle. Goldstone obliged. Accordingly he ignored the evidence
and relevance of torture and the glaring incongruencies of the police testimony and intimated
that Sithole probably committed suicide because he had implicated Winnie Mandela in criminal
conduct. Goldstone’s findings were a judicial imprimatur of the very man who had first
appointed Goldstone to the bench, Jimmy Kruger. Goldstone’s judicial finding to Sithole’s
torture and death was: “It leaves me cold!”
Goldstone’s betrayal of justice and his mocking dismissal of the agony of the victims guaranteed
his own personal future. De Klerk was well aware of Goldstone’s over-weaning ambition and
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consequently felt secure in using Goldstone’s ambition to serve precarious political ends. De
Klerk has admitted this in no uncertain terms.17 But De Klerk was playing a dangerous game. If
Goldstone’s ambition could bastardize all semblance of integrity in order to curry favour with
the powers that be, De Klerk did not realize that when he, De Klerk, no longer wielded power,
Goldstone would then sell his services to the new man of power and turn on previous
benefactor.
The last significant act of the apartheid government was the setting up of a standing
commission to investigate the causes of violence. The commission, headed by Goldstone
appointed by a gullible De Klerk, became known as the Goldstone Commission and was extant
between 1992 and 1994. The Commission had to issue reports to the sitting President, De Klerk,
and to Mandela. During the first two years of the Goldstone Commission the real power in the
country was De Klerk; during the latter two years, power was slowly devolving to Mandela.
Both De Klerk and Mandela had vested political interests in the findings of the Goldstone
Commission. True to form, Goldstone meticulously tailored and timed his findings to the flavor
of whoever was wielding real power in the country. Thus, at first his findings were bent to De
Klerk’s requirements and then later, in complete volte face to his previous findings, to
Mandela’s requirements.
One of the destabilizing forces instigating the violence was rogue elements within the rusting
apartheid machinery. This force became known as the “third force”. The other power bloc
fomenting violence was the ANC itself and especially its armed wing the MK. De Klerk was
17
The Last Trek: A New Beginning (1998) pg 213
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interested in denying the existence of the third force. Mandela was interested in refuting the
involvement of the MK in the violence. Both leaders had compelling political reasons to conceal
the truth. Their loyalties were to politics which always demands compromises; Goldstone’s
loyalty however had to be to the truth and the evidence. To all observers at the time, to anyone
who was watching the news networks, it was obvious and manifest that there was a “third
force” and that the MK was knee deep in the violence. For heaven’s sake, I myself saw the ANC
shooting IFP marchers in cold blood in the streets of Johannesburg. The subsequent TRC
hearings confirmed what was clear to all at the time.
Goldstone however played with the facts (and consequently with lives) in order to position
himself in a favorable light first with De Klerk and then with Mandela. During the initial period
of the Commission, when De Klerk was the power, Goldstone denied that there was a “third
force”. Then when it became clear that Nelson Mandela was going to become the new leader,
Goldstone all of a sudden changed his tune.
RW Johnson described the situation:
“Goldstone was adamant, however, that, contrary to the ANC’s repeated allegations,
there was no evidence for the existence of a ‘third force’ organizing violence against
them. Then, just weeks before the 1994 elections, Goldstone dramatically reversed
himself, pointing to a systematic and silent ware waged by the police on a farm called
Vlakplaas against the ANC and its allies.”18
18
Johnson pg 154
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Vlakplaas was the horrific killing field of apartheid. Goldstone new about its existence for
months but the release of such devastating information would have decimated any credibility
De Klerk still had and would surely have resulted in the sacking of Goldstone. So Goldstone sat
on this evidence. Then, when it became clear to Goldstone that De Klerk was a spent force, all
of a sudden, in a blitz of publicity orchestrated to portray himself as a warrior in the cause of
truth, Goldstone released the Vlakplaas bombshell . Johnson writes: “…the timing was perfect
for the ANC’s election campaign. It thus came as no surprise when Goldstone was appointed to
the Constitutional Court.”
If anything endeared Goldstone more to the ruling elite in waiting was his obstinate refusal to
say a word about ANC violence in the face of overwhelming evidence.
“The most remarkable fact about the Goldstone Commission was that while it was
supposed to investigate all armed groups, it simply failed to investigate the MK or any
form of violence orchestrated by the ANC. This was Hamlet without the prince, for the
MK continued to be active recruiting, training, managing arms caches and carrying out
hundreds of attacks, murders and other armed actions. Both the IFP and the security
forces laid plentiful evidence before the Commission on these matters but Goldstone
concentrated on other groups involved in the violence, an attitude which naturally
endeared him to the ANC.” 19
As PW Botha had rewarded Goldstone for covering up the brutality to detainees during the
state of emergency by promoting him to the Appellate division, as De Klerk rewarded him for
19
Johnson - 154
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whit-washing the Sizwe Sithole death in detention by appointing him to head the Goldstone
Commission, Mandela now rewarded him for twisting and the truth to suit political power by
nominating him to the newly formed Constitutional Court.
When Nelson Mandela puts the kosher stamp of approval on a pig anything is possible. The
road from apartheid era judge, Jimmy Kruger appointee, PW Botha accomplice, to special
prosecutor of the International Criminal Court and special investigator on behalf of the Human
Rights Council becomes a highway. The erstwhile perpetrator of crimes against humanity can
become the prosecutor of crimes against humanity.
FOR HUMANITY
During the Eichmann Trial in Jerusalem Hannah Arendt made a painful observation. There were
prominent and respected post war Germans prospering in the fog of forgetfulness despite the
fact that such respect and prominence had been earned under the Hitler regime.
“It is one thing to ferret out criminals and murderers from their hiding places, and it is
another thing to find them prominent and flourishing in the public realm – to encounter
innumerable men in the federal and state administration and, generally, in public office
whose careers had bloomed under the Hitler regime.”20
In one of the few books analyzing the role of the judiciary under Hitler, Hitler’s Justice: The
Courts of the Third Reich, Ingo Muller documented how Nazi judges kept their jobs after the
war and even flourished. In his submission to the TRC, Dyzenhaus quotes Muller on this topic in
20
Eichmann in Jerusalem: A Report on the Banality of Evil – Penguin 1977 originally 1963 – pg 17
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respect of the apartheid judges. “The German judiciary, who mostly kept their jobs after the
war, despite having watched very high ranking members put on trial at Nuremberg, did exactly
what they had done during the Third Reich. Why? Because there was no process of
accountability.”
George Steiner who has reflected movingly on remembrance and forgiveness has written:
“Only those who actually passed through hell, who survived Auschwitz after seeing their
parents flogged to death, or gassed before their eyes (like Elie Wisel), or who found their
own kin amid the corpses from which they had to extract gold teeth, a daily encounter at
Treblinka, can have the right to forgive. We do not have that right.”21
The victims of apartheid have forgiven their oppressors. This is their right and we must respect
it. Not a single person has been nor likely will be prosecuted for the crime of apartheid. And
probably that is how it should be.
The culpability of Goldstone for crimes against humanity is manifest and well grounded in
international humanitarian law. If Goldstone was not the worst among the apartheid judges he
certainly was no better than a Schlegelberger. Careful and close study of Goldstone’s judicial
record during dark days of apartheid will reveal that Goldstone the apartheid judge might even
fall short of Schlegelberger the Nazi judge.
Because of an artificial cutoff date in the Rome Statute (2002), Goldstone cannot be indicted
before the International Criminal Court at The Hague. He perpetrated his crimes before 2002.
21
Postcript – George Steiner
32 -A CRITIQUE OF SELF-APOTHEOSIS -
Also, it seems that in countries where universal jurisdiction is permitted for crimes against
humanity Goldstone could not be indictable again because the cutoff date is also 2002. I might
be mistaken here and I am not an authority. On the other hand, it seems that Goldstone could
be indicted in countries that have ratified the Convention on Suppression of Apartheid - again I
would defer to an expert on this matter.
I am however calling for a concerted, sustained, well financed and vigorous international effort
to document Goldstone’s culpability for crimes against humanity. This effort should not be
motivated by narrow political, religious, ethnic or national concerns but rather as an effort to
cleanse the cathedrals of human rights of hypocrisy. Until this is done human rights will forever
be an illusion.
This is why Goldstone should be singled out and for no other reason. The TRC commented on a
particular ugly aspect of apartheid injustice:
“The judiciary, which unthinkingly allowed judicial policy to be influenced by executive
dictate or white male prejudice; which was intent on maintaining and protecting the
status quo; which willingly participated in producing the highest capital punishment rate
in the ‘Western’ world by the mid 1980s and an execution rate that impacted
overwhelmingly on poor black male accused.”
It was not that black murderers were not guilty of murder. They were. It was that white
murderers of blacks were hardly ever brought to trial and never executed. Such a system
captured the essence of apartheid injustice. The apartheid judges reasoned that the fact the
white murderer of a black human being was never indicted in no way derogated from guilt of
33 -A CRITIQUE OF SELF-APOTHEOSIS -
the black murderer of whites and hence justice was served. But selective justice is total
injustice. A just system demands that all murderers be brought to trial. Anything else is the
opposite of justice or to quote the Nuremberg judgment “institutionalized injustice”.
This brings me back to where I started this journey: the UN Human Rights Council Commission
of Enquiry headed by Goldstone into the Israeli Palestinian Gaza conflict. The council is
dominated by persistent human right abusers. The super powers and majority blocs guarantee
that the worst offenders – like the white murderers under apartheid - are never investigated or
indicted. Sri Lanka which has majority support can be commended on a war that killed over
20,000 civilians. Israel might be guilty of human rights abuses but when only Israel is
investigated and not Sri Lanka for example then it is not justice but apartheid injustice.
Goldstone’s posturing that the exclusion from prosecution of criminal acts in other parts of the
world committed by others does not derogate from the alleged guilt of Israelis. This is the logic
of an apartheid judge – which is precisely what Goldstone was most of his life. And who more
apt, more suited, more skilled and experienced in administering apartheid justice than Richard
Goldstone – the quintessential apartheid judge.
After apartheid, Goldstone should have been grateful for the forgiveness bestowed upon him
by the gracious virtue of those he had oppressed. He should have slipped away into silence like
the erstwhile Nazi judges that Dyzenhuas mentioned and whose presence discomfited Arendt.
But the moment Goldstone sought to capitalize on the beneficence he received and use it to re-
invent himself as a proponent of human rights, the moment he sought to pollute the supposed
sanctuaries of human rights with his presence, and rewrite history by denying the past and his
34 -A CRITIQUE OF SELF-APOTHEOSIS -
role in it, and repainting himself, the oppressor as the liberator, then anyone who knows the
truth is duty bound to speak out. Hence, despite my initial reluctance to write this article, if I
did not I would be no different form Goldstone, who chose ignominious silence throughout 25
years of apartheid.
Steiner again: “Everything forgets. But not a language. When it has been injected with
falsehood, only the dramatic truth can cleanse it.”22 When human rights are compromised then
they become a tool of oppression and not a guarantor of liberty. The language of human rights
has been infected and it must be cleansed, starting with Goldstone.
Goldstone, the apartheid era judge, a scheming, poisoning, ambitious Caesar Borgia, now sits as
the Pope of Human Rights. The ghosts of JB Vorster and PW Botha are rocking Olympus with
immortal laughter.
In this shallow world of pretence it takes a mad, blind Lear to see that the thief has become and
judge and the judge a thief:
“A man may see how this world goes with no eyes. Look with thine ears. See how yond justice rails upon a simple thief. Hark, in thine ear: change places, and, handy dandy, which is the justice, which is the thief.”
Lear – Act IV Sc 6
22
The Hollow Miracle – George Steiner
35 -A CRITIQUE OF SELF-APOTHEOSIS -
A PERSONAL NOTE
“We usually strive to reveal in others the blemishes we hide in ourselves.”
- The True Believer: Thoughts on the Nature of Mass Movements – Eric Hoffer
Dear readers permit me to conclude on a purely selfish and personal note.
As part of his inexcusable mission to rewrite his past, Goldstone trumpeted to all and sundry
“collective white guilt”. This was a calculated and shrewd maneuver of an erst-while apartheid
apparatchik who, in spite of himself, could not slough off the vestiges of racism still clinging to
his judicial robes. The new, greedy black elite in post-apartheid South Africa sought to grab for
itself as much wealth as it could. The wealth was in the hands of the whites. The whites had to
be shamed into buying off moral reprieve by paying these new, ravenous elite, who wielded the
political power and therefore could of provide absolution for a tithe. The rich whites were not
going to give anything away easily and so they had to be shamed into coughing up by other
‘moral’ whites. The white who castigated his own the loudest became the most moral and was
allowed to participate in the bountiful spoils. Goldstone charged into this travesty. He got
himself appointed as trustee of the Development and Reconciliation Fund, this is the very same
man who refused to appear before the TRC, the forum for true and genuine reconciliation. He
signed a declaration acknowledging the “white community’s responsibility for apartheid” (not
his own of course) and “our debt to fellow South Africans” and accepting that it was whites (as a
race and not him in particular) “failure to accept responsibility for apartheid thereby inhibiting
reconciliation and transformation.” How easy it is for an apartheid judge to persist with racism
36 -A CRITIQUE OF SELF-APOTHEOSIS -
Johnson rightly points out that these statements and this posturing of Goldstone “betrayed a
considerable state of intellectual confusion” and “endorsed the latest variant of collective guilt
as if unaware that this doctrine had been repudiated by the church and had been the scourge of
Jews down the ages.”23
In Hope and Memory, Todorov wrote:
“It is now easier to grasp why we are reluctant to grant moral credit to someone who
systematically excoriates his own group and favours the other, because we know
instinctively that the role of moral conscience is actually quiet comforting to its holder.
He or she becomes the virtuous one, as the keeper of values, and a guide to the straight
and narrow. When said by a public figure, ‘We are all guilty’ actually means ‘I’m less
guilty than you are, because I am the one saying so.’ Such a person thus cannot be
accused of being egocentric or xenophobic – but he or she acquires a rewarding role in
the community as the guardian of its values.”24
Goldstone persisted in his “collective guilt” band-standing. As Chancellor of Wits University, he
told a graduation ceremony that white graduates must not expect the top jobs anymore
because “the ‘sins of the fathers’ would be counted against them.”25 Johnson writes that “when
it was pointed out that not only was he [Goldstone] encouraging young, skilled whites to
emigrate but he was endorsing the doctrine of collective guilt, he had hurriedly denied that he
accepted the doctrine. Yet here again he was clearly accepting it.”
23
Johnson – pg 302 24
Hope and Memory – Todorov (pg 141) 25
Johnson 302
37 -A CRITIQUE OF SELF-APOTHEOSIS -
And this is precisely where things get personal. Goldstone was pontificating to young children,
such as my children living in South Africa that they must pay for the ‘sins of the fathers’.
Goldstone is pre-eminent amongst those sinners. My child, and for that matter, his own grand-
children, had nothing to do with apartheid. Goldstone had been the faithful and longstanding
hand maiden of apartheid. Goldstone had been on the payroll of apartheid. He had applied
apartheid laws day in and day out for two decades. He had slavishly served the most brutal of
apartheid leaders and each one of them, PW Botha and De Klerk, had rewarded him for his
loyalty. Yet my children, who are blameless, must pay for his crimes! What conceit, what
humbuggery!
To add insult to injury, at the very moment Goldstone was telling these young white graduates
that in the new South Africa, no matter their skill, their effort, their ability, their achievement,
they as a race “must not expect top jobs” he himself was seeking to secure for himself a top job
at the UN.
Todorov again:
“What are the features of a moralizer? The term is meant to describe public persons who
pride themselves on having the ability to discern good and evil. Being a moralizer does
not mean you are moral. A moral person subjects his or her own life to the criteria of
good and evil, which transcend personal pleasures and satisfactions. A moralizer, on the
38 -A CRITIQUE OF SELF-APOTHEOSIS -
other hand, tries to subject the lives of others to these same criteria, and profits by doing
so – by putting himself on the right side of the fence.”26
The personal payoff in Goldstone’s new found racism was a sure ticket to the UN - a moralizer’s
paradise.
Goldstone has left South Africa, the scene of his crime. Good riddance – we do not need him
and my children who live here certainly do not need to hear the wind bag moralizing of this
most quintessential apartheid judge. If you really think about it, after all, Goldstone had to
leave. The new South Africa with a black majority is unbearable for a white man who sucked
and sucked at the ample but putrid tit of apartheid for 25 years of his life.