'Goldstone’s retractions won’t change legal realities'

While ‘Washington Post’ op-ed takes pressure off Israeli officials in universal jurisdiction cases, those adamant about pursuing such charges will continue to do so, experts say.

By RON FRIEDMAN
April 4, 2011 02:08
4 minute read.
YUVAL SHANI

YUVAL SHANI. (photo credit: Haifa University)

Israeli experts on international law agreed on Sunday that though Friday’s Washington Post article by Richard Goldstone had no formal legal significance, his backtrack on the original conclusions of the Goldstone Report could aid Israelis facing universal jurisdiction challenges for their role in Operation Cast Lead.

“Even if Goldstone regrets the conclusions of the report, the conclusions stand. We must remember that Goldstone was one of four committee members and that their conclusions and recommendations were adopted by the UN General Assembly,” said Hebrew University International Law Professor Yuval Shani.

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“While the committee’s recommendations were not binding and could not be used for an indictment in the International Criminal Court, they are undoubtedly used in arguments against Israelis in court cases being tried in European countries,” said Shani.

He added that the Palestinian Authority’s claims against Israel in the International Criminal Court, which sits in the Hague, rest heavily on the Goldstone Report’s findings.

Shani stressed that the PA’s claim was being hotly contested because it is unclear if they are even allowed to submit such a claim, not being a state entity, but that if they were allowed to, Goldstone’s recent backpedal could work in Israel’s favor.

“People or groups who are set on suing Israelis abroad can still do so and obviously the original report gave them substantial ammunition with which to do it. Perhaps now the general climate will be less forthcoming, but we can’t speak about a dramatic shift.

“It is also important to remember that people are suing for things that occurred after the Goldstone Report came out, like the Gaza flotilla, and in those cases, Goldstone’s backtrack is meaningless,” said Shani.

Asked about the chances of success of an Israeli effort to have the report’s conclusions reversed, Shani ruled out any chance of that happening.

“There is no, nor will there ever be, a process of re-opening the report. The only redress may be in follow up investigations like that conducted by the Davis Report,” said Shani, referring to the report by the UN committee of independent experts – chaired by former New York judge Mary McGowan Davis – that followed up on the recommendations of the Goldstone Report and which acknowledged Israel’s efforts to conduct investigations into some of Goldstone’s findings.

Shani also said that Israel should continue to be concerned about the perceived erosion of the Israeli judicial system’s ability to conduct independent internal investigations.

“There is a continuing erosion, in the eyes of the international community, in the Israeli courts’ ability to investigate sensitive and controversial issues. Even the Davis Report left question marks open on that front,” said Shani. “That is something that needs to concern us.”

Dr. Guy Harpaz, from the Hebrew University Law Faculty, said that Goldstone’s column may make it harder for friendly or neutral states to accept lawsuits against Israelis, but that those who are adamant about doing so will not likely change their minds because of Goldstone’s second thoughts.

“Theoretically these are reversible processes, but in light of the time that has passed since the war and the nature of the parties involved in the lawsuits, we are dealing with a non-starter,” said Harpaz.

Harpaz said that Israel could try to have the General Assembly alter its decision to adopt the Goldstone Report’s findings, but that as far as he knew, the GA only reversed a decision once in all its history, the decision to equate Zionism with racism, and he couldn’t see it happening again, given the current balance of power.

Irit Kohn, who in the past headed the international law department in the Justice Ministry and today serves as president of the International Association of Jewish Lawyers and Jurists, said that Goldstone’s article, which stated that the Palestinians had done nothing to curb the shooting of rockets from Gaza into Israel, could aid Israelis who filed lawsuits against Palestinians abroad and also assist the Israeli lawyers who represented Israeli soldiers in universal jurisdiction cases abroad.

“Even if it doesn’t have formal, legal, implications, if Israel acts correctly, it could change the public perception and that, in turn, can change the perception of the courts,” said Kohn in a phone interview from Berlin.

“When the Goldstone Report first came out, it was widely covered in the press and created waves. I am now in Europe and so far I have heard little mention of his new statements in the media.

Israel will have to work hard to get it out there,” Kohn said.


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