Obama's dilemma - thanks to Goldstone

Goldstone weaves a sticky web

From Ian Williams
Middle East International 6 November 2009

Amid the hysteria generated among Israelis in the wake of the UN report on last December/January’s assault on the Gaza Strip, it is easy to forget that the commission headed by the South African judge Richard Goldstone simply concluded that Israel – and indeed Hamas – had a case to answer about possible war crimes, and asked both to mount credible investigations.

Anyone who parses the statements coming from Israel’s Western protectors will realise that Israel has already lost. The US, the UK and France have all urged it to mount such an investigation, while making sure to accompany their requests with the now mandatory stroking of Israeli sensibilities.

The US regretted the “bias” of the report’s mandate – ignoring the fact that Goldstone had successfully insisted on rewriting it to include investigation of crimes committed by either side as a condition of accepting the position. The British envoy to the Human Rights Council (HRC) tied himself into a complete Möbius strip by declaring: “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.” They would not be so indulgent about Radovan Karadzic’s refusal to appear at his hearing in The Hague.

But that is where the legal expertise of Goldstone and his colleagues is so damaging. The International Criminal Court’s jurisdiction only extends to cases that the country concerned has failed to investigate or try itself. So why does Israel not respond with a Kahan-style grey-wash job as it did after Sabra and Shatila?

One reason is political. As Binyamin Netanyahu obliquely reminded his coalition partners and Washington after the HRC 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.” It was, of course, Barack Obama’s preferred peace partners in the previous Israeli government who started Operation Cast Lead.

However, the main reason is that Goldstone’s expertise has boxed in Israel and its putative friends with a comprehensive and wide-ranging array of references. The report, which the HRC endorsed, recommends that the UN Secretary-General refer the issue to the Security Council, asking not only that it require Israel to mount an investigation, but that the Council itself should set up a panel of legal experts to monitor and report back on the thoroughness of any Israeli process. The ultimate sanction is that the Council can, as it did with Sudan over Darfur, empower the ICC to take proceedings against individuals from non-member states if Israel does not comply.

Well aware of the possibility of a Security Council veto, the report is also referred to the prosecutor of the ICC to consider in the context of the Palestinian Authority’s acceptance of the Court’s jurisdiction. The UN General Assembly has in the past accepted Palestine as a state in almost everything except voting rights. If Palestine’s signature is accepted then the Court has jurisdiction on crimes committed in its territory, whether or not Israel has signed.

The report also suggests that countries consider prosecutions under the growing doctrine of universal jurisdiction of national courts against war crimes. The Israeli defence minister has already cancelled a trip to Britain for fear of just such a prosecution and other officials have already had similar problems with travel abroad.

Assuming that the UN General Assembly endorses the report’s conclusions, Switzerland will be asked to reconvene a meeting of the parties to the Geneva Conventions to consider conditions in the Occupied Territories. (It is worth remembering that the report, as well as considering the imprisonment of Israeli soldier Gilad Shalit at some length, also considers and condemns Israeli behaviour towards Palestinian prisoners). It also asks the Assembly to consider the legality of use of white phosphorous, flechettes and tungsten in armaments and calls on Israel to put a moratorium on their deployment.

The Arab Group’s General Assembly resolution was restrained in its tone. It asked the secretary-general to refer the report to the Security Council and called on both Israelis and Palestinians to conduct the investigations demanded, with the secretary-general reporting back to the Assembly on progress. Needless to say, such a reasonably phrased resolution was likely to be unacceptable to the Europeans, desperate to avoid offending Obama or Israel.

The issue puts Obama in an invidious position. US opposition to any call for Israel to investigate would undo all the president’s bridge-building in the Arab world. Alternatively Obama could try to trade US backing for Israel over Goldstone for concessions elsewhere: such as settlements or the Gaza blockade. Washington will almost certainly try to procrastinate, even if the sticky web that Goldstone and his team have woven limits its options.