The UN’s 2009 Goldstone Report’s scrutiny of Israel for its use of force in Gaza
may turn out to be a blessing in disguise.
For obvious reasons, most
commentators would say that the immediate impact of the document’s harsh
criticism of Israel was decisively negative.
It exposed the Jewish state
not only to bad headlines, which it is used to, but also to the unprecedented
possibility of mass international criminal proceedings against everyone, from
political leaders, to top commanders, to foot soldiers.
There had been a
number of relatively isolated attempts to bring top Israeli political leaders
and security commanders to trial in foreign national courts even before
Goldstone, but nothing on the same scale.
Even though no Israeli
officials have been indicted in any international settings following the report,
it broadened the new front of lawfare against the state.
Lawfare can be
many things, but most recently, in the Israeli context, it refers to attempts to
bring international criminal proceedings against individual leaders and soldiers
following Israeli uses of force, ignoring whether the force was used in
The many flotillas and flytillas that have come since the
report were certainly not direct results of the document, but they, and the
attempts to bring individual criminal proceedings against leaders and soldiers,
were definitely “inspired” on some level by the report.
So the initial
impression of the report was that it opened up a new and dangerous front for the
But there have been two other storylines that have developed
over time from the almost-600-page document, which may be having a positive
impact on the lawfare battles between Israel and its adversaries – possibly even
affecting this week’s escalating conflict with Hamas.
One is that
fighting and consistently beating Goldstone- inspired lawsuits may, at this
point, make Israel appear less vulnerable to accusations of legal
Although IDF officials are careful not to declare any
victory, they have noted to The Jerusalem Post
that no local official has been
indicted in international courts (as opposed to foreign national courts such as
Turkey’s), let alone convicted.
Setting aside circumspection, many
commentators have declared this outcome a significant victory for Israel, and
while certainly not a complete bar, a deterrent to advocates of lawfare against
Huge funds and time was poured into trying to nail Israel at the
International Criminal Court and in some other forums, all for
While there may still be some UN officials criticizing Israel
regarding the current escalation with Hamas, there just isn’t the same incentive
to push for condemnations when the state has won every major recent legal
battle, from beating Goldstone, to getting a UN stamp of approval for its
blockade of the Gaza Strip from the UN-sponsored Palmer Report in September
Even more impressive from Israel’s standpoint than having won these
battles, is why it won.
Those parties trying to bring the country down
using lawfare thought that they would garner advantages and expose new
vulnerabilities by fighting about Israel’s compliance with the law of armed
The opposite happened.
Until Goldstone and the
flotillas, because no one tried to make a real criminal case against individual
soldiers, those criticizing the state could suffice with general statements
about “excessive force” and violating human rights.
They could also
succeed in blurring the differences between human rights law and the laws of
armed conflict, to the disadvantage of Israel.
Human rights law dictates
human rights in almost all contexts, but is generally viewed as being displaced
during battle situations by the law of armed conflict.
Human rights law
is concerned about harm to civilians, with very little balancing of competing
priorities. The law of armed conflict views harm to civilians as inherently bad,
but also as inherently legal if a mere byproduct of battle situations, and as
long as principles such as proportionality and necessity are properly
Suddenly, when jurists actually had to make lawyerly cases
about specific incidents again specific individuals, when jurists were held to
the criminal standard of beyond a reasonable doubt, then using the law as a
sword turned out to not be so simple after all.
If proving criminal level
intent and who was present is difficult in regular cases of violence with a few
people in a room, how much more difficult is it to size up in an evolving
war-zone environment with countless players jumping in and out of the picture,
most of whom cannot be identified.
Not only have UN condemnations against
Israel lost much of their power, but more countries hesitate to join the
condemnations now that they have had time to really confront the veracity, or
lack thereof, of legal claims against Israel.
The second positive
storyline that has developed over time from the Goldstone document is the
breakdown, to some extent, of moral equivalency and the breakdown in giving a
free ride to opponents of Israel.
It was little noticed, but Richard
Goldstone wrote one of the most detailed critiques, certainly pre-Arab Spring
and civil wars, of a group such as Hamas ever done by a prominent UN
No fewer than three sections of his report focus on criticizing
Hamas for everything from endangering civilians with its tactics of positioning
its fighters in civilians urban areas to criticizing it unequivocally for its
policy of indiscriminate rocket fire.
While a systematic study of human
rights reports pre- and post-Goldstone has not been performed, and at least
Hamas was not in power long before Goldstone, Hamas has clearly born heavy
criticism, once reserved only for Israel, post- Goldstone.
Only a few
weeks ago, Human Rights Watch excoriated Hamas’s legal and judicial system as
“reeking of injustice,” including unrestricted torture and arbitrary
When Hamas announced this week that it would file a complaint
with the UN in light of the Israeli air strikes, it may not yet have absorbed
the negative impact that the Goldstone Report has had on Hamas’s ability to use
lawfare against Israel.
If suddenly a large number of Gazan civilians are
harmed by an errant bomb, the situation could change, at least from a public
But likely Israeli improvements in careful
targeting post-Goldstone, as well as the seeming, if unexpected, Goldstone-
bonus to Israel in the legal arena, may have made Hamas indiscriminate rocket
fire against civilians less morally equivalent even in the eyes of many members
of the UN, than pre-Goldstone.
If this is true, then the Goldstone report
may have made Israel stronger.