Wikileaks and the Goldstone Precedent

Robin Shepherd of the London-based Henry Jackson Society makes an important point about the classified documents on Afghanistan that Wikileaks revealed this week: the descriptions of “accidental killings by our soldiers of hundreds of innocent civilians — revellers at wedding parties, kids in school buses, ordinary people going about their daily business who tragically found themselves in the wrong place at the wrong time” — sound very much like the kinds of accidental civilian deaths for which the Goldstone Committee wants Israel charged with war crimes.

In both cases, Shepherd notes, the civilian casualties were the inevitable result of combat against a terrorist organization that “systematically hides behind the civilian population”: the Taliban in Afghanistan, Hamas in Gaza. Yet several coalition countries have been “cheerleading the passage of the Goldstone Report on Gaza through the United Nations,” not realizing that the precedent they’re setting could eventually be used against their own soldiers.

Shepherd doesn’t give the numbers, but they are shocking: of the 45 countries with troops in Afghanistan, only 12 voted against endorsing the Goldstone Report in the UN General Assembly. Twelve voted in favor, and 21 abstained.

Notable abstainers included Britain and France — which, as the second- and fourth-largest troop contributors to Afghanistan, are among the most vulnerable to Goldstone-style charges — and Georgia, which faces allegations of similar “war crimes” during its 2008 war with Russia. Turkey, which routinely kills civilians in its battles with the PKK, voted “yes.”

Granted, the Goldstone Report was commissioned by the UN Human Rights Council, which has never shown any interest in investigating any country but Israel. So coalition members probably don’t have anything to fear from that quarter. But the HRC is not the only player on this field.

An acquaintance recently reported being shocked when, at an academic conference, a guest speaker from the International Criminal Court explicitly described the court’s plan as establishing a precedent via the “easy” cases it’s tackling now (egregious human rights violators like the Lord’s Resistance Army in Uganda and Sudanese officials involved in the Darfur genocide) that will grant it legitimacy to prosecute anyone for anything, worldwide, thereafter. And once it establishes this precedent, it intends to use it, the speaker added.

But that shouldn’t surprise anyone: it’s what smart courts do when trying to establish a new power (as anyone who has seen Israel’s Supreme Court in action would know). They always start with “easy” cases — ones where the public will like the outcome and will therefore ignore the dangerous procedural precedent. And Israel, due to its global unpopularity, is precisely such a case.

Then, with the precedent set, courts can proceed to “hard” cases, with potentially unpopular outcomes, without fearing serious backlash. After all, you can’t accuse a court of behaving improperly if it’s merely doing what it has done many times before without anyone objecting.

Thus if the Goldstone Report isn’t stopped, the U.S. and its allies will eventually pay the price. But since many of those allies clearly haven’t grasped this, it’s Washington’s job to drive the point home.