Friday, October 16, 2009

Hamas stands to gain most from Goldstone

From THE JERUSALEM POST, Oct. 16, 2009, by Herb Keinon:

Regardless of how the vote turns out Friday in the UN Human Rights Council - whether the Goldstone Commission Report is sent to the UN Security Council, the General Assembly, or both, and what the council's final resolution says - one thing is certain: Goldstone is going to be with us for a long time, and the report will have significant ramifications on a wide range of issues.

This issue is a marathon, not a sprint, and Israeli policy-makers will have to adjust and recalibrate depending upon developments over which they have little control.

...If the Human Rights Council sends the report to the Security Council, the Security Council could theoretically then refer it to the International Criminal Court in The Hague (ICC), the worst scenario from Israel's perspective, and one that could conceivably lead to indictments against Israeli leaders or officers. The likelihood of that happening is slim, however, since it is widely expected that the US would veto such a resolution.

...however ...the ICC's prosecutor may be able to take up the issue independently.

The more likely scenario is that the issue will be taken up by the General Assembly, which, because of the automatic anti-Israeli majority in that body, will likely kick the issue over to the International Court of Justice in The Hague (ICJ), the body that took up Israel's construction of the security barrier and issued a decision against the fence in 2004.

Though it does not have the jurisdiction to issue criminal indictments, a negative ruling by the ICJ could bite Israel in other ways - for instance, it could give a strong tail wind to various groups in countries where there is universal jurisdiction, and where it is possible to try people for crimes committed elsewhere. These groups could use the ICJ's ruling, or even the Goldstone Report itself, as support to get local authorities to prosecute Israelis.

And that's only in the legal sphere.

In the diplomatic sphere, the ramifications have already been felt, and could have a deadening impact on the diplomatic process.

First of all, Netanyahu has made clear that if the Goldstone Report is adopted, Israel would think twice before taking risks again and making concessions for peace. His argument is that Israel can only take risks if it believes that the world would back its right to self-defense, a right that Goldstone is eroding.

But ...the Goldstone Report has ...[also placed] Palestinian Authority President Mahmoud Abbas in a no-win situation.

While it is very good for Abbas politically to be seen fighting for the adoption of the Goldstone Commission recommendation, paradoxically it would be very bad for him in the long run to actually win that fight, since a process that would end up dragging Israel before either the ICC or the ICJ - at Abbas's behest - would undoubtedly further poison the atmosphere between the PA and Israel and make the prospect of negotiations more remote than they already are.

The conventional wisdom for the past three years, since Hamas took over the Gaza Strip, is that the only way Abbas will be able to gain the upper hand from Hamas among the Palestinian public is for there to be a diplomatic process that can improve the situation for the Palestinians. Abbas cannot compete with Hamas when it comes to resistance to Israel. His calling card is being able to achieve Palestinian aims through negotiations and a diplomatic process. But if there is no diplomatic process, Abbas will have nothing relative to Hamas.

In other words, if the Goldstone Report deep-freezes an already cold diplomatic process, Hamas could very well end up the biggest beneficiary.
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