Goldstone, an objectionable report.

 

by Marc Cogen

 

Not that long ago any war between two hostile populations was fought at the battlefield, which was a real field or meadow. Napoleon was defeated at Waterloo on a piece of land which is now a protected natural site in Belgium. Tourists visit it by busloads. One has a view of the open landscape and a few original farms which were used during that battle in the memorable days from 16 to 19 June 1815. The ‘collateral damage’ during the battle of Waterloo were two farms and a herd of cattle. A few decades later the so-called laws of armed conflicts or laws of war started to be codified with the ‘General Order n°100’ (1863) of US President Lincoln as a notable step during the American civil war. From then onwards we witnessed the ‘Oxford Manual on the Laws of War (1880), the Hague Regulations concerning the Laws and Customs of War on Land (1907), which were replaced by the four Geneva conventions of 1949 and additional Protocol I of 1977. Not to mention here are the numerous individual conventions regulating or prohibiting certain acts of war and war materiel. All conventions are open to state parties only. It means that statehood is the prerequisite for their adoption and accession.

Today the nature of war has changed dramatically. The battlefield has become a virtual reality, without physical demarcations, and the enemy can be anyone, everywhere. Needless to say that society and lawyers find it increasingly difficult to apply the four Geneva conventions and additional protocol in a meaningful way. If we can point to one major legal difficulty, it certainly relates to the distinction between combatants and civilians, one of the few fundamental criteria of the laws of armed conflicts. Suicide bombers, armed civilians forming a band or cell, armed militants who live with their families in a war zone, children enlisted to fight, supply or spy, we can go on to demonstrate that the Geneva rules are surpassed by events on the ground. Since responsibility in international law is defined in terms of state responsibility, it is no surprise that states find themselves more and more in the role of accused violator. On the other hand, non-state, elusive entities, constantly changing and operating undercover easily fall outside the radar of the laws of war as codified today. It results all too often in exemption from punishment for those acting outside statehood. Adding to this already perplexing situation, the inconsiderate application of human rights increases confusion in the virtual battlefield by protecting individuals regardless of their capacity, function or any other characteristic. Human rights are based on the principle of non-discrimination, whereas international humanitarian law is inherently based on the principle of discrimination between combatants and civilians. These are two different legal methods. But there is more.

Let me say a few words on human rights and war. The body of human rights is applicable when a state is not at war or applicable outside any zone of combat. In such a situation – a normal civil life – the full range of human rights is applied within the country. As soon as military operations are launched – when a state is at war, whether declared or not – the full body of international humanitarian law applies as an alternative legal norm within the zone of combat or in the theatre of operations. International humanitarian law always makes a balance between protection of victims and military necessity. Now, the application of military necessity necessarily implies that civil freedoms and the degree of protection afforded to both civilians and combatants is relative and in proportion to the dangers of the war zone and the military operations themselves. It is a mistake to apply human rights as such within a war zone, because it will ultimately deny the rules of international humanitarian law. Moreover, the full application of human rights in a war zone would automatically result in the illegality of the military operations themselves which always have the potential to endanger life and property. The humanitarian law conventions have not outlawed military operations. For example, the activation of the right to self-defense, one of the fundamental rights of any state, requires the use of force. Consequently, human rights law is not the appropriate legal framework to evaluate military operations in a war zone. This is a major shortcoming emanating from the UN Human Rights Council which is only mandated to deal with human rights. Only a handful of human rights remain operational in a war zone, whereas all other human rights may be temporarily suspended as long as the war continues. Here are the limited number of human rights also applicable in times of war: prohibition of death penalty without a sentence of a court; prohibition of torture; prohibition to hold someone in slavery; prohibition of punishment without the law; prohibition of corporal punishment; prohibition of mutilation; prohibition of outrages on the personal dignity such as enforced prostitution; prohibition of the taking of hostages; prohibition of collective punishments; and, prohibition to threat to commit any of the foregoing acts: - see: Coard v. United States of America’ case of September 29, 1999 the Inter-American Commission on Human Rights; Article 15 of the ‘European Convention for the Protection of Human Rights and Fundamental Freedoms’ (‘derogation in time of emergency’) and related case law.

 Now the mission statement of the ‘UN fact Finding Mission on the Gaza Conflict’ or ‘Goldstone Commission’, appointed by the President of the UN Human Rights Council on April 3, 2009, was “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.” The report of the fact finding mission was already delivered on September 15, 2009 and counts not less than 575 pages, a remarkable fact given the very short period during which the report was drafted concerning a very complex theatre of war. The language of the report is the language used by a prosecutor, and not surprisingly the report recommends that the report should be formally submitted to the Prosecutor of the International Criminal Court (ICC). The ‘Goldstone Commission’ acted as a prosecutor, framing the report as an indictment, and demanding the Prosecutor of the ICC to carry out its recommendations which the Prosecutor’s office of the ICC already begun. This is really the rule of lawyers instead of the rule of law. In a democracy, there is no government of judges and judges have their own well-defined place in the constitutional order and within the rule of law. If we would follow the ‘Goldstone Report’ we would abide by a government of judges in the so-called international community. No support can be found in the development of democracies to support the ‘Goldstone approach’ or the ‘UN Human Rights Council’ approach. Even in case of war, judges do not become the supreme leaders of their country or of the international community. I only know one case of such an attempt today: the ‘Union of Islamic Judges’ (or ‘Makaham al Islamya’) in Somalia, which is connected to Al Qaida. This union of judges was formed out of a group of Sharia courts who united themselves to form a rival government.

The ‘Goldstone commission’ has been appointed by a UN human rights body, which has no authority to deal with matters of war and peace, or with international humanitarian law; if so, it violates its own legal basis and therefore any transgression of its competence results in actions and reports which are null and void according to international law. No legal foundation can be found in the establishment of the UN Human Rights Council regarding war and peace. If we tolerate such transgression of competences, the UN Human Rights Council would replace the UN Security Council within a few years.

For these reasons I do not comment on the 575 pages of the ‘Goldstone Report’ which is an illegal report under UN law and general international law. I only want to refer to the  ‘detailed legal findings by the Mission’. The Goldstone report claims that it made ‘an objective assessment of the events it investigated’ (paragraph 1671). Can we take this for granted? The appointing body, i.e. the UN Human Rights Council, has been watched for its ‘objectivity’ and the facts speak for themselves: in the first year since its establishment in 2006 74 percent of the UN Human Rights Council’s moves against an individual state have been directed against Israel, 21 percent against Sudan, 5 percent against Myanmar, and the rest of the world has been given a free pass – see Anne Bayefsky in ‘National Review of September 28, 2007.

The inconsiderate action of the UN Human Rights Council is a serious threat to the United Nations system, international law, and finally, the rule of law itself. It should be rejected by governments and by the UN Security Council.

 

Marc Cogen is professor of International Law.

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