Tuesday, December 22, 2009

It's the law

Since this was written, of course Livni has had to cancel her trip to London, despite the shameless grovelling from Brown and Milliband..

Washington Report on Middle East Affairs, Pages 14-15

United Nations Report
Israel’s Obsession With Goldstone Report Reflects Fears of War Crimes Prosecutions

By Ian Williams

It is a tribute to the legal meticulousness of Richard Goldstone and his colleagues on the U.N. Human Rights Council’s (UNHRC) fact-finding mission that the Israeli government is so obsessed with their report. It can see prosecutions of IDF and Knesset members just over the horizon. Binyamin Netanyahu and his ministers have raucously complained to Britain and France for not voting against the Council resolution that accepted the report, and to Russia and China for supporting it. And, of course, they keep confusing Obama administration criticism of the mandate the Council gave with criticism of the report itself.

[Judge Richard Goldstone (l), head of the U.N. Human Rights Council’s special mission investigating Israel’s “Operation Cast Lead,” and U.N. High Commissioner for Human Rights Navi Pillay prior to the Council’s Sept. 29, 2009 meeting in Geneva at which Goldstone presented his findings. (AFP photo/Fabrice Coffrini)]

Judge Richard Goldstone (l), head of the U.N. Human Rights Council’s special mission investigating Israel’s “Operation Cast Lead,” and U.N. High Commissioner for Human Rights Navi Pillay prior to the Council’s Sept. 29, 2009 meeting in Geneva at which Goldstone presented his findings. (AFP photo/Fabrice Coffrini)

In fact, Britain, France and the U.S. united in telling Israel to set up an impartial inquiry. Indeed, to their credit, Gordon Brown and Nicholas Sarkozy apparently tried to trade a “no” vote for Israeli pledges to hold an inquiry, lift the blockade and stop settlement activity and evictions. In the flood of personal attacks on Goldstone and his mission, neither Washington, nor London, nor Paris has seriously challenged the substance of his report or the integrity of his mission, let alone his own personal integrity.

Israel’s Western allies have been reduced to inanities, lamenting the mission’s failure to hear the case the Israelis refused to make. “Because Israel did not cooperate with the Mission, which we regret, the report lacks an authoritative Israeli perspective on the events in question, so crucial to determining the legality of actions,” declared the British envoy in Geneva, who should have been fully aware that it was precisely with that eventual excuse in mind that Israel refused to cooperate.

With all the outrage of a recidivist criminal asked to stop breaking and entering people’s houses, Netanyahu and his colleagues continue to bluster. A quick summary of their defense is:

“So let’s get this straight. Israel broke no laws of war during Operation Cast Lead, which is why we will not tolerate any impartial inquiry, even one we organize ourselves, into what happened then. Nor will we allow the issue to be judged by an international court, and what is more, just in case, we want the laws changed to allow us to do what we want when we say we are fighting terrorism.

“It is one-sided, partial, biased and anti-Semitic to suggest that our behavior and Hamas’ both bear scrutiny, and everyone knows that the U.N. is hopelessly prejudiced against us, which is proved by their cunning in heading a mission with a Zionist pro-Israeli Jew whose daughter served in the IDF. And since we refused to cooperate, the report did not hear any evidence from us and so is one-sided.

“Oh, and by the way, just because we keep rubbing Obama’s nose in our broken promises over settlements in no way lessens our demand that the White House sacrifice its hard-won global credibility by rescuing us from the consequences of our failure to hold the inquiry that Goldstone, the U.S., France and the UK have all asked us to hold.”

There is, of course, a small germ of truth in Israel’s protestations about the comparative fervor with which the Human Rights Council goes after the Jewish state compared with other malefactors. One would like to think that the states involved were imbued with deep human sympathy for the Palestinian predicament, but it does not take a cynic to doubt it. Egypt could immediately end the blockade on Gaza, for example, but it does not, in a callous exercise of realpolitik.

Equally, their obstinate pseudo-solidarity in the Human Rights Council has been counterproductive. The original inquiry mandate refused to look at the possibility of Palestinian groups committing war crimes, which has given the Obama administration wiggle room to refuse support to the report. Former U.N. High Commissioner for Human Rights Mary Robinson refused the offer to head the inquiry precisely for that reason.

Goldstone, with the support of Navai Pillai, Robinson’s successor, accepted the position only on condition that he had a mandate to look at both sides. It is worth remembering why his credentials enabled him to do that. A veteran legal struggler against apartheid, he was on the Truth and Reconciliation Commission that helped keep South Africa together after the fall of the apartheid regime. He became chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia, meticulously building cases against the perpetrators of crime—against, one might add, mainly Muslim victims.

He was then drafted onto the Volcker Commission on the United Nations Oil for Food program and was prepared to engage in harsh criticism of former U.N. Secretary-General Kofi Annan, despite a longstanding personal acquaintance and shared concern for international justice.

Goldstone’s daughter reportedly has said that one reason he took the job was because he wanted to ensure that the report did not engage in unfair criticism of Israel. I suspect that most people in the U.N. and the human rights community had no idea of the depth of his sympathy to Israel. Certainly, if it had been more widely known, it is likely that some members of the Human Rights Council might have protested vociferously at his appointment. They would have been wrong, of course. Goldstone has shown his integrity repeatedly, and his report could only be assailed as biased by people who have not read it, and who ignore the conclusions—which, after all, are most modest: that Israel and Hamas should investigate the allegations of war crimes.

Needless to say, the alleged friends of the Palestinians on the Council did their best to give ammunition to those trying to wiggle out of the report’s otherwise unassailable conclusions by failing to mention Hamas and including many sound, but contextually misplaced, political criticisms of Israel. To be fair, some Russians and Chinese are alleged to have told Israel that they were referring the report to the Security Council but voted for the resolution because of these other points, on the West Bank and East Jerusalem. It is a measure of how desperate Israel is that this “reassurance”—that the countries involved fundamentally opposed Israel policy on its eternal capital and occupation but did not want the issue to go to the Security Council and thus the International Criminal Court (ICC)—was so welcome to Israeli politicians. Indeed, Moscow and Beijing oppose the reference to the Court because they see Uighurs, Tibetans and Chechens as potential stand-ins for Palestinians!

So what next? The report will certainly be discussed at the U.N. General Assembly, whose decisions are now considered “non-binding,” despite the partition plan being accepted there and the Korean War run from there. However, it will certainly bring more grief for Israel if it does not hold the inquiry.
Imagine—Heavy Pressure From Israel!

Because the Security Council is the only body with the power to refer to the ICC prosecutions of citizens of states (like Sudan, Israel, the U.S. and China) that have not ratified the convention establishing the Court, there will be heavy pressure from Israel and its supporters on the U.S. and others not to allow the report to go there, and to veto it if it does.

Israel’s government has threatened to stop the peace process if the Report goes to the ICC. Interestingly, Netanyahu told the Knesset after hearing the UNHRC vote, “We will not allow Ehud Olmert, Tzipi Livni and Ehud Barak, who sent our sons to war, to arrive at the international court in The Hague.” This was the Likudnik’s reminder to the White House that despite the Israeli prime minister’s vigorous defense of Operation Cast Lead against the report’s findings, it was in fact the “peace” Labor/Kadima coalition that had planned and initiated the assault.

However, the report already has had implications. Increasingly, Israeli leaders and military are having difficulty traveling abroad for fear of arrest and prosecution. The report recommends referral to the ICC if the parties do not conduct credible investigations within six months. But in any case, national courts will be armed with the Goldstone report to take action if any of the perpetrators set foot in their jurisdictions.

Despite the coalition government’s bluster, there is a serious question about whether the peace process is proceeding at all, since Netanyahu is refusing the Obama administration’s demand to honor previous pledges to stop settlement building. But far from being an obstacle to peace, the report offers multiple points of leverage for the White House, if it cares to use them. And it should—unless it wants to reverse the waves of good opinion generated since Obama went to Cairo.

While there is wriggling, there is also a lot of nuanced criticism in the administration’s handling. Ambassador Alejandro Wolff at the Security Council, while implying that the State Department also has not read its 570-plus pages, balanced the Washington’s “serious concerns about the report, its unbalanced focus on Israel, the overly broad scope of its recommendations, and its sweeping conclusions of law” with a firm statement: “Nevertheless, we take the allegations in the report seriously. Israel has the institutions and the ability to carry out serious investigations of these allegations and we encourage it to do so. Hamas is a terrorist organization and has neither the ability nor the willingness to examine its violations of human rights.”

Incidentally, he added, “just as we defend Israel’s right to self-defense, we cannot accept the continuing humanitarian crisis in Gaza. The people of Gaza must have hope for a better future and know that the international community hears their concerns. We call for a reopening of the crossings, with an appropriate monitoring regime, to allow for the entry of legitimate goods into Gaza.”

So there we have it. It is a small mercy but a significant one: a break in the doctrine of so many decades that the U.S. cannot criticize Israel.

One hesitates to ask whether even Congress will countenance continuing loan guarantees and grants to a foreign government that defies U.S. policy by expanding settlements, blockading Gaza, and obdurately refusing to conduct its own inquiry into Cast Lead. But even if it does, the administration, not Congress, casts Security Council vetoes. It is time for some hard talking to Israeli politicians about their future travel plans and the danger that their travel agents will need to become qualified as international lawyers.

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