Friday, October 16, 2009

UNHRC Adopts the Goldstone Report (Sort of)

The UNHRC has officially adopted the Goldstone report criticizing Israel and Hamas for their conduct during the Gaza war. Well, sort of -- though Goldstone's report contained criticisms of both Israel and Hamas, the UNHRC's resolution, "inexplicably", says nary a word about Hamas. Stunning, I know. Judge Goldstone apparently is displeased with this, but you can't tell me he's actually surprised, as the only principle the UNHRC holds deeper than "screw Israel" is "insulate Palestine". His at least partial effort at demanding that Hamas be held accountable for war crimes as well was noted and admirable, but it was also completely unsupported by the commission's original mandate and no credible observer expected it to go anywhere. I'm not exactly shocked to find out that the UNHRC felt absolutely zero compunction in ignoring it. I sort of feel bad for Judge Goldstone, whom I suspect had convinced himself that he had made a difference in countering the absurd one-sidedness of the UNHRC's treatment of Israel, but at the same time, he's a big boy, and he was not so naive as to not know what he was getting into.

That gets, somewhat obliquely, to Jeffrey Goldberg's warning to the West that the precedent set by this commission will come back to bite it once American or British or NATO commanders are arraigned on war crime charges. Insofar as the commission's standards have made terrorist tactics nearly immune from retaliation (essentially, if you're willing to kill off the civilians you're supposedly "defending", you're in the clear), that's going to hurt America in Iraq or NATO in Afghanistan as much as it hurts Israel in Gaza.

Nope. I've noted before that the development of international law vis-a-vis the Israeli/Palestinian conflict is a sterling example of how great cases make bad law. Insofar as legal rules and doctrines are being promulgated primarily based on the metric of insuring that they vindicate as many Palestinian claims as possible (and diminish Israeli ones accordingly), they undoubtedly are pushing law in a bad direction -- not because Israel is always right, but because a legal regime whose first principle is that Israel is always wrong is not going to be one that crafts legal rules well-suited for the entire breadth of human experience.

But for Mr. Goldberg's warning to hold true, we have to assume that the "precedent" set by the Goldstone Commission (and the UNHRC's adoption thereof) will be applied to other countries, and there is no reason to think that's true. After all, it's not like the recent fawning resolution the UNHRC wrote about Sri Lanka's conduct against the Tamil rebels had any bearing on how it treated Israel. It seemed to have no precedential value whatsoever, because Israel effectively exists in a lawless space: nobody actually intends for the rules and standards applied against it to enjoy cross-applicability to other contexts (undoubtedly because if they were, they would ensnare many, many other nations far more powerful in the relevant international bodies than Israel). That's why the critique of the UNHRC with regards to Israel that holds the most resonance with me is the double-standard criticism. The great check a liberal polity has against unjust legal rules is that they will be enforced against everyone. Once it is accepted that a given body is sui generis and can be treated as a unique category, disconnected from the rules and regulations that everyone else must abide by, there is literally no constraint on imposing the most biased, arbitrary, or politically expedient requirements on them.

If I were France, or South Africa, or Sudan, or Iran, I would not worry in the slightest that the Goldstone precedent will give them any trouble whatsoever. Not because they can meet it, but because everyone knows they'll never be expected to.

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