Tuesday, October 27, 2009

Through The Legal Looking Glass--The Goldstone Report

Those of us who grew up comfortably with our constitutional form of government and limitations on the prosecutorial powers of the state should become educated quickly on international law. The Goldstone Report (more correctly known as The Report of the United Nations Fact-Finding Commission on the Gaza Conflict) was recently approved by the U.N. Human Rights Commission on a 25-6 vote. Naturally, it condemned Israel on every level for its "oppression" of the "Palestinians." But it is not the pro forma hatred of Israel that matters. It's the implications for future actions in international legal forums that is truly at issue.

The press worldwide has been feeding lies and half-truths and moral equivalencies to the willing fools who read them for years. So why was the Goldstone Report not simply another opportunity to blacken the name of Israel? There is a genuine and sinister reason for the issuance of the Report. Unlike the newspaper and television calumnies, the Report sets real things in motion. And the most important of those is that it provides an official excuse for domestic courts worldwide who are in bed with the Islamists to exercise otherwise tenuous jurisdiction over Israelis who have committed alleged war crimes. This is the doctrine of "universal jurisdiction" which is totally unacceptable to Americans (whether it is unacceptable to Obama remains to be seen).

The theory (like so many bad theories which lead to horrendous unintended results) is that if a citizen of a nation commits a war crime, and that nation is unwilling to prosecute the alleged war criminal under ordinary rules of jurisdiction, then any nation which agrees that a crime against humanity has been committed can arrest and try the alleged human rights violator. Of course, this being a rule that applies in places without the concepts of Anglo-American jurisprudence, little niceties such as due process and separation between prosecutors and trial courts are simply not worth discussing. Universal jurisdiction is only supposed to be applied when very particular circumstances are present (e.g., a "lawless" nation with no firm rules on what is legal and what isn't). But if a nation with a commonly-accepted system of law has decided that no law has been violated within its territorial boundaries, then the universal jurisdiction of the various nations and the International Criminal Court have no independent right to pursue prosecution.

But there's a catch. Who gets to determine if a nation has a commonly-accepted system of law? Well, the U.N., of course. Although the Goldstone Report does not specifically state that Israel lacks that commonly-accepted system of law, its 650 pages make it clear that by the standards of the U.N., Israel either lacks that system, or has inhumanely chosen to ignore those standards. And since legal niceties don't bother the U.N., that's good enough for them.

The whole report was a monumental set-up. The fix was in before Goldstone ever lifted a finger. He concluded that no amount of argument was ever sufficient to justify Israel's use of operational necessity, self-defense, or military attacks on areas where the Palestinians launch attacks and use civilians as shields. Any civilian killed was considered to be an "intended victim." The Report dismisses all those acts as "premeditated crimes."

The next step was to determine that Israel's operation in Gaza during the missile strikes being launched by the Palestinians into Israel was a systematic effort to oppress the Palestinian people. Goldstone's phony investigation concluded that the incidental razing of a chicken farm that produced eggs for Gaza and the Israeli shelling of a sewage system were clear war crimes, but called the Palestinians' use of Gazan human shields to be mere speculation. The anti-missile operations in Gaza were therefore a systematic policy of repression that has systematically deprived people in Gaza of their freedom.

And finally, because Israel refuses to acknowledge that any of this nonsense has any legal meaning at all after hundreds of civil and military court investigations of Israeli Defense Forces, the report concludes that Israel has shown itself to be unwilling to respond to the repression. Therefore, "The Mission supports the reliance on universal jurisdiction as an avenue for States to investigate violations of the 'grave breach' provisions of the Geneva Conventions of 1949 to prevent impunity and promote international accountability."

Simply put, the Report allows such nations as Libya, Sudan, Saudi Arabia and Iran to declare open season on any Israeli who happens to wander within their territorial limits. They, you see, are nations of law--unlike Israel. And our brave President Obama, though not endorsing the Report, was instrumental in approving of the investigation in the first place, and has steadfastly refused to disavow the Report or support our longtime ally, Israel. Since Obama and his Attorney General don't much care for or know about American constitutional due process, why should they concern themselves with foreign jurisdictions?

15 comments:

StanH said...

The Israelis are a people, and a nation that I admire for their courage, and tenacity. This fearless little nations strength, in the face of insurmountable odds (Islamic Goons) is remarkable, and inspiring. To hell with the UN and their feckless decrees, and if Barry doesn’t stand behind Israel, a pox on him as well.

AndrewPrice said...

As I've said before, it's time that we shut down the UN. Goldstone was South Africa's chief justice under Apartheid wasn't he? Maybe he should look to his own issues before attacking other countries.

LawHawkSF said...

StanH: That sums it up well.

LawHawkSF said...

Andrew: It is amazing how we keep supporting an organization which would be meaningless without us, and our reward for it is to be kicked in the teeth (along with our allies). But it took this president to start participating in the kicking. I can't decide if he's a masochist, a sleeper, or just a goddam fool.

HamiltonsGhost said...

Lawhawk--Does that mean that if the UN accepts the report and issues a resolution, that Eric Holder's Justice Department will start grabbing Israeli citizens who can be identified as IDF members and prosecuting them in the United States?

LawHawkSF said...

HamiltonsGhost: In theoretical terms, that's exactly what it means. I can't believe that Obama or Holder would have the nerve to do such a thing, but I continue to be amazed at just how crazy this administration actually is. Besides, there must be a treaty in which America would agree to the resolution, and it would never make it past the Senate (the vote would be similar to the Kyoto vote).

Writer X said...

LawHawk, I had to read your post twice to make sure I was reading it correctly. Has the world gone mad?

I miss John Bolton.

LawHawkSF said...

WriterX: I felt the same way. I checked five different sources just to make sure I wasn't slipping up and reporting something that couldn't possibly be. Unfortunately, damned foolishness confirmed.

John Bolton was the best UN rep in my memory (although I will admit that Jeanne Kirkpatrick was no slouch).

DCAlleyKat said...

WriterX: Has the world gone mad?

Yes.

CalFederalist said...

I thought Mr. Goldstone was a character in "Gypsy." As in "Have an eggroll, Mr. Goldstone." So he's gone from financing Broadway shows to attempting to set up fake criminal trials for fake war criminals. How sad. Too bad Rosalind Russell isn't still around to set him straight.

LawHawkSF said...

DCAlleyKat: As I said, the lunatics have taken over the asylum.

LawHawkSF said...

CalFederalist: Those were the good old days. This is more like when she fouled up the line and sang "Have a gallstone, Mr. Eggroll." The best Goldstone deserves is a very painful gallstone.

Tennessee Jed said...

What struck me after reading this excellent follow-up post to the earlier article on the U.N. Human Rights Investigation and all of your comments is this: Pretty much we all agree that the United States (and probably the free world) would be better off without the U.N. It is an organization which grants faux legitimacy on tin pot dictators and other countries who really wrote the book on violation of human rights.

However, aren't we essentially tilting at windmills here? While I'd love to see leaving the U.N. as part of some charismatic conservative's platform to reclaim our government, it would take a real risk taker to actually have the cajones to pull the trigger and do so.

LawHawkSF said...

Tennessee: You've nailed the largest part of the problem. This rogue organization is so deeply ingrained in the folklore of anybody born after 1945 that it will be nearly impossible to get rid of it. The best way of doing it would be to elect a conservative Congress and a conservative President and find ways of forgetting to fund all the hare-brained schemes these thugs come up with. No direct assault--just starve the bastards.

AndrewPrice said...

Jed, I would love the close the UN down. But you're right, it would be a public relations disaster. I think we would do better to simply starve the beast of funds and send people to tie everything up. You could do that with few people in the US noticing or caring.

I would suggest trying to change the place, but I don't think that's possible -- the structure is too corrupted.

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