Friday, November 13, 2009

Another Brick

International law prof Julien Ku directed me to yet another critique of the Goldstone Commission, this one by Wachtell partner Trevor Norwitz (for what few non-law school friends I have left in the world, Wachtell is one of the most prestigious law firms in the world, bar none).

Maybe I've gotten my fix after the Halbertal piece, but, even though I found the criticism technically quite sound, it just didn't drive me that much. I did appreciate that the author both resisted the temptation to personally demonize Goldstone, while at the same time not let him off the hook for some severely problematic assumptions and extensions that, ultimately, lie on his head. (I hope I reached a similar balance).

Mr. Norwitz, like Professor Halbertal, like myself, have adopted a pretty robust consensus position that says Israel should investigate all credible allegations of war crimes and other improper activity, regardless of the problems in the Goldstone Commission. I wish that this position was being forwarded more aggressively in the court of public opinion, but it seems to have the advantage of being agreed to be everyone and the disadvantage of being implemented by no one.


joe said...

Well as long as it's a prestigious law firm--bar none!--I know he's right because all the best arguments are from authority. (Especially because making partner at a firm is about analytical brilliance and nothing to do with rainmaking.)

That said, and irrespective of the above, he seems to be an effective advocate for his views.

But his writing is stylistically weak. First, he needs to end the love affair with the passive voice. Second, he should try for a consistent authorial voice (or make sure his clerks compare notes, as the case may be).

Also this:

"As one entrusted to find the facts, you had a moral if not legal obligation to seek the truth, and if you were not able to do so, you should have said just that, rather than pretending that you have established the truth ('based on information provided') when you knew that was not so and that you had only heard one side of the story."

I would note that in some legal systems, determining truth "based on the information provided" is considered justice. We even award cash damages based on these so-called "facts in evidence." Sometimes even prison sentences and the odd death mark. And if a party declines to present evidence (perhaps on the theory that the court has no legitimate authority because the gold-trim on the flag indicates an admiralty court or whatever, or just because not dignifying certain accusations with a response is not media savvy tactic), then that party rolls them dice and takes them chances.

Of course maybe in some pie in the sky system of "international law" Goldstone has some higher duty to "actual" truth, because hey, it's not like anyone gives a damn aboout international law. So Goldstone might as well go with Norwitz's suggestions, especially the ones the obvious over-the-top rhetorical gambits.

Like this gem:

"Acknowledge that, based on the standards by which you are judging Israel, many other countries would also have been found guilty of war crimes (including in recent and ongoing conflicts, and most certainly the Allied powers that defeated Germany and Japan in World War II)."

That's a great idea, Trevor! I think I'll put it into practice. The next time I hear some statement of casual racism around the hypothetical water cooler. I'll be sure to say "I have to take issue with that. But please remember that under the standard by which I am judging you, George Wallace also made racist remarks."

joe said...

Doh! Make that "is a media savvy tactic."

PG said...

This seems like an odd construction: "one of the most prestigious law firms in the world, bar none."

If it is merely one of the most prestigious, how does it make sense to follow that with "bar none"?