Analysis: The Goldstone Report’s positive effects

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 self-defense.

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 country.

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 violations.

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 Israel.

Huge funds and time was poured into trying to nail Israel at the International Criminal Court and in some other forums, all for naught.

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 2011.

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 conflict.

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 balanced.

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 body.

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 arrests.

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 relations standpoint.

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.