The reaction of many to the UN Human Rights Council's decision last week to order a new investigation as being a harbinger of "Goldstone 2" is understandable.
By YONAH JEREMY BOBRichard Goldstone 390(photo credit: Denis Balibouse /Reuters)
The Goldstone Report on the 2008-9 Gaza War by South African Jewish Judge Richard Goldstone has been criticized by many jurists beyond the immediate pro-Israel camp. The reaction of many to the UN Human Rights Council's decision last week to order a new investigation as being a harbinger of "Goldstone 2" is understandable. But many may not realize that they soon may miss "Goldstone 1." The Goldstone Report struck extraordinary fear into the Israeli political, defense and legal establishments because it was the first UN report ever recommending criminal proceedings against individual Israeli soldiers and policy-makers as opposed to deriding Israel as a country. But at the end of the day, the legal tsunami nightmare of dozens or more cases against Israelis in the International Criminal Court never transpired.
The most important reason was from February 2009 – April 2012 Israel's legal establishment handed the Palestinian's supporters their hat in the fight over whether "Palestine" was a state which could ask the ICC to get involved. When the ICC accepted Israeli arguments that Palestine was not yet a state, the Goldstone train fell off the tracks and all allegations against Israel for Cast Lead 2008-9 or Pillar of Defense, November 14-21, 2012 were essentially wiped out. But now we live in a different universe. The legal universe and playing field transformed on November 29, 2012 when the UN General Assembly made Palestine a non-member state. In a less widely-reported speech, ICC Prosecutor Fatou Bensouda in Paris on March 20, 2013 reportedly said that the ICC is "waiting" for the Palestinians to "come back," implying that following the UN vote, she would view Palestine as a state, even though the UN Security Council has not recognized it. Put succinctly, the threat of criminal allegations against Israelis going anywhere (though there are many obstacles besides the statehood bar) at the ICC are far greater now than they were when the Goldstone Report came out. Next, while there are many sound criticisms of Goldstone, he was the first UN investigator to ever insist on adding to his mandate investigating and critiquing Hamas. Of course, most of the report was focused on Israel in an unbalanced fashion, but the fact that a large section focused on Hamas gave Israel some cover and muddled the anti-Israel message. There is a good chance that the UNHRC will make sure to appoint someone this time who will not investigate Hamas or make it an even smaller part of the report. Finally, while the UNHRC undoubtedly had hoped that Goldstone's Jewish credentials would be a fig-leaf for the report, Goldstone himself ultimately repudiated much of his own reports findings and the interpretations that others gave to it. This also hurt the report's power to pressure Israel legally. There is a very high chance that the UNHRC will make sure not to appoint anyone who might have second thoughts over their criticism of Israel. This is not to say that Goldstone will be forgiven by his many detractors.But secretly, some of those detractors may wish for a mere "Goldstone 1" once they get a look at "Goldstone 2."
