UN general assembly 248 88 ap.
(photo credit: AP [file])
Given the blatantly one-sided and slanted political mandate of the United Nations fact-finding mission headed by Justice Richard Goldstone, and being aware of the accusation against Israel of war crimes published by at least one of the members of the mission even before it began, one is tempted to wonder why on earth the leadership of Israel and the public is so surprised and shocked by this UN report.
While the lip-service reference in the report to the need to release Gilad Schalit, and the lukewarm criticism of Hamas rocket fire against Israel's civilian centers might be seen as a poor attempt at balancing against the bulk of the severe anti-Israel criticism, the report is nothing more, or less, than a typical UN report, written according to UN rules, with UN terminology ("occupied Palestinian territories"), run-of-the-mill UN criticism of Israel and based on a UN Human Rights Council mandate that determined in advance that Israel had committed war crimes.
Even the report's recommendations seek to put Israel through the gamut of UN bodies for punishment: the Human Rights Council - a body predominantly composed such nondemocratic and oppressive paragons of international virtue as Saudi Arabia, Cuba, Egypt, Nicaragua, Russia, South Africa, Libya and others; the Security Council and the UN-inspired International Criminal Court, the statute of which was drafted to include provisions deliberately slanted against Israel and which, by its own rules, could never elect an Israeli judge.
ONE MIGHT indeed be tempted to dismiss this report and repeat David Ben-Gurion's age-old and classic dictum "um shmum!" However, that being said, and despite this being another UN anti-Israel document, there are some implications likely to arise out of this report that we cannot and should not ignore.
First, the heavily biased conclusions against Israel, a democratic country acting in self-defense, and the inexcusably lenient treatment of blatant Hamas terror will doubtless be interpreted by Hamas and its colleagues throughout the area as justification for their tactics of shielding themselves behind civilians, operating in the midst of densely populated civilian areas and deliberately targeting Israeli civilians. It is highly likely that the report will serve as a green light for further developing such tactics, knowing that the organized international community has, through the Goldstone report, given its sanction.
Second, the report will likely give substantive and misguidedly moral impetus to those bodies and individuals functioning in the Western democratic countries, and working to manipulate the liberal legal systems practicing universal jurisdiction to delegitimize Israel and its leaders, through initiating war-crimes prosecutions. This could pose problems for Israeli leaders and senior officers travelling abroad, both to those countries (such as the UK, Spain and Switzerland) whose legal systems have no filtering mechanisms against such politically inspired prosecutions, and those party to extradition agreements. While it is highly unlikely - for substantive legal and evidential reasons - that such prosecutions would succeed, the attendant publicity and international posturing could be problematic.
The report will also likely serve as "cannon fodder" for a spate of new anti-Israel resolutions within the UN and its various constituent bodies and agencies and nongovernmental organizations.
The specter of Israeli leaders and military officers in the dock of the International Criminal Court at The Hague, while dramatic, is nevertheless highly unlikely due to the lack of jurisdiction of that court vis-a-vis Israel, partly due to the fact that Israel (as well as the US, China, India, Russia and others) is not party to its statute. Similarly, any attempt to initiate an action in the court through a Security Council resolution would most likely fail, and in light of the politicized nature of the claims and their background, it is doubtful if the court's prosecutor would initiate a viable prosecution pursuant to the narrow discretion granted him by the court's statute.
PERHAPS THE most important implication emanating from the Goldstone report is international law's lack of response on how to deal with international terror. As such, this report - in its lenient treatment of blatant Hamas terrorism and severe treatment of a democratic country defending itself against such terror - poses a very serious challenge to the various international bodies responsible for developing international humanitarian law. This body of law has not really been updated since the 1977 Protocols to the Geneva Conventions, and does not provide serious and practical norms and guidelines as to how to deal with terrorists that hide behind civilians and that bomb other civilians. Nor does it know what to do about suicide bombers and the like.
Once the dust settles on this report, and we all calm down from the indignation and insult wrought by "another UN document," we must rationally size up the practical and legal implications and determine how to deal with them. In the meantime, there is no doubt that the UN will continue to be the UN. Without Israel to bash, how would it maintain itself?
Um shmum indeed!
The writer, a widely acknowledged international lawyer, served as the legal adviser to the Foreign Ministry and as ambassador to Canada. He is presently a partner in the Tel Aviv law firm of Moshe, Gicelter & Co. In this capacity he led a delegation on behalf of Magen David Adom to appear before the Goldstone mission in Geneva.