The Goldstone Report and International Law Part I

 

by Peter Berkowitz

1^st part of 4

The march of politics under the banner of law

 

he controversy over the "Report of the United Nations Fact Finding Mission on the Gaza Conflict"¹ (September 15, 2009), more commonly known as the Goldstone Report, seems to have died down. But its larger significance has yet to be appreciated. For the most part, the controversy has swirled around the reliability of the Goldstone Report's factual findings and the validity of its legal findings concerning Operation Cast Lead, which Israel launched on December 27, 2008, and concluded on January 18, 2009. But another and more far-reaching issue, which should be of great significance to those who take seriously the claims of international law to govern the conduct of war, has scarcely been noticed. And that pertains to the disregarding of fundamental norms and principles of international law by the United Nations Human Rights Council (hrc), which authorized the Goldstone Mission; by the Mission members, who produced the Goldstone Report; and by the hrc and the United Nations General Assembly (of which the hrc  is a subsidiary organ), which endorsed the report's recommendations. Their conduct combines an exaltation of, and disrespect for, international law. It is driven by an ambition to shift authority over critical judgments about the conduct of war from states to international institutions. Among the most serious political consequences of this shift is the impairment of the ability of liberal democracies to deal lawfully and effectively with the complex and multifarious threats presented by transnational terrorists.

 

At its most incendiary, the Goldstone Report purported to find solid evidence that Israel had committed crimes against humanity.

Notwithstanding a veneer of equal interest in the unlawful conduct of both Israel and the Palestinians, the Goldstone Report — informally named after the head of the un Mission, Richard Goldstone, former judge of the Constitutional Court of South Africa and former prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda — overwhelmingly focused on allegations that in Operation Cast Lead Israel committed war crimes and crimes against humanity. The purpose of Israel's three-week operation was to substantially reduce the rocket and mortar fire that Hamas, long recognized by the United States and the European Union as a terrorist organization, had been unlawfully raining down upon civilian targets in southern Israel for eight years, and which Hamas had intensified after its bloody takeover of Gaza from the Palestinian Authority in 2007. While the Goldstone Report indicated that here and there Palestinian armed groups may have committed war crimes, it purported to find substantial evidence — based primarily on the testimony of Palestinians either affiliated with, or subject to, Hamas — that Israel had repeatedly violated international law by using disproportionate force. At its most incendiary, the Goldstone Report purported to find solid evidence that Israel had committed crimes against humanity — among the gravest breaches of international law — by implementing a deliberate policy of terrorizing Palestinian civilians, both by targeting civilian noncombatants and destroying civilian infrastructure.

Israel has provided three major responses to the Goldstone Report. The most recent came from the Intelligence and Terrorism Information Center (itic), an Israeli ngo that works closely with the Israel Defense Forces (idf). In March 2010, the itic published and posted online a 349-page study, "Hamas and the Terrorist Threat from the Gaza Strip: The Main Findings of the Goldstone Report Versus the Factual Findings."² Like the two previously published accounts by the Israeli government of the country's continuing investigations of allegations of unlawful conduct committed by its armed forces during the three weeks of Operation Cast Lead — "The Operation in Gaza: Factual and Legal Aspects"³ (July 29, 2009), and "Gaza Operation Investigations: An Update"⁴ (January 29, 2010) — it garnered next to no attention in the press, from international human rights organizations, from the hrc, or from the General Assembly. Nor have the Goldstone Report's champions in the international human rights community or Judge Goldstone and his colleagues dealt seriously with the incisive criticisms published by scholars and journalists concerning both the report's factual findings⁵ and legal findings.⁶

But the deeper issue for international law concerns the right and the responsibility of states to make lawful judgments, under the international law of armed conflict, about the conduct of war, including the crucial judgments in asymmetric warfare concerning what constitutes a proportional use of force. That issue cannot be resolved by showing that the Goldstone Report's findings of fact about the Gaza operation are severely biased, or by demonstrating that the report misapplied or misunderstood the test for determining whether Israel exercised force in a proportional manner, although such showings and demonstrations are highly relevant. Nor can it be resolved by bringing to light how the Goldstone Mission itself — as conceived and authorized by the Human Rights Council, carried out by Goldstone and his colleagues, and endorsed by the United Nations General Assembly — disregarded basic norms and principles of international law, even though this multifarious disregard of law is of great significance. In the end, whether nation-states or international authorities should have primary responsibility for enforcing the lawful conduct of war turns on conflicting opinions about armed conflict, politics, and justice. Even those many conservatives and progressives who share a commitment to the freedom and dignity of the individual may come to different conclusions grounded in conflicting opinions about the best means for securing individual rights while maintaining international order.

Authoritative sources in international law assign primary responsibility for judgments about whether war has been conducted in accordance with the law of armed conflict to the judicial and other relevant organs of nation-states. That assignment is rooted in the larger liberal tradition's teaching that nation-states — particularly those based on the consent of the governed and devoted to securing individual rights — are the best and most legitimate means of securing peace, exercising authority over the individual, and preserving political freedom. That teaching is bound up with the view that states are likely to be more sober in assessing the actions of other states than international organizations because states must bear the burden of any proposed reform or rule. In contrast, the Goldstone Report and its supporters appear to be animated by the conviction that judgments about the lawful conduct of war are best and primarily vindicated by international institutions, because of their superior objectivity, impartiality, and expertise. And they have shown themselves willing to disregard international law as it is in order to remake it as they believe it should be. One reason to prefer the allocation of responsibilities in international law as it currently stands to the Goldstone Report's efforts to transform it are the report's stunning defects. They illustrate that those who are responsible for the operation of international institutions are no less subject to the passions and prejudices that thwart the impartial and objective administration of law than the government officials in civilized nations, and in some cases may be more subject to such passions and prejudices.

 

Israel's critique of the Goldstone Report

In july 2009, the Israeli foreign ministry published and posted online an analysis of the Gaza operation that was designed to rebut in advance the Goldstone Report's main charges, which would not be released until mid-September of that year. Prepared while Israel was still conducting preliminary field investigations into allegations of unlawful conduct by the idf, "The Operation in Gaza: Factual and Legal Aspects" covered numerous issues. The 159-page document emphasized Israel's right and obligation under international law to use military force to stop Hamas's bombardment of civilian targets in southern Israel with rockets and mortar shells — approximately 12,000 since 2000 and 3,000 in 2008 alone. It reported that by late 2008 Hamas had put one million Israeli civilians in range of its weapons and had assembled armed forces of more than 20,000. It described the considerable efforts Israel undertook, in accordance with the un Charter, to bring international pressure to bear on Hamas, "including urgent appeals to the un Secretary General and successive Presidents of the Security Council to take determined action, and diplomatic overtures, directly and through intermediaries, to stop the violence." It reaffirmed Israel's adherence to the law of armed conflict and human rights law and explained that, under a proper understanding of both as well as of Hamas's systematic use of human shields and relentless blurring of the distinction between civilians and combatants, Israel's military operation in Gaza was a proportionate response. It provided clear evidence, including photographs and video, that, in flagrant violation of international law, Hamas deliberately engaged in "the launching of rocket attacks from within densely populated areas near schools and protected un facilities, the commandeering of hospitals as bases of operations and ambulances for transport, the storage of weapons in mosques, and the booby-trapping of entire civilian neighbourhoods so that an attack on one structure would devastate many others." It reviewed the extensive and unprecedented precautions the idf took to minimize noncombatant casualties — including making hundreds of thousands of phone calls to Gaza residents to warn of impending air strikes — against an adversary that placed civilians in the line of fire as part of a coldly calculated military strategy. It summarized the steps the idf took during the three-week conflict to ensure the daily delivery of humanitarian supplies to the civilian population. It acknowledged that "the Gaza Operation resulted in many civilian deaths and injuries and significant damage to public and private property in Gaza." And it reported that the idf was conducting field investigations into accusations of unlawful conduct; detailed Israel's extensive and well-established system of military justice of which those investigations were the first stage; and reaffirmed Israel's right and responsibility under international law to investigate accusations that its military had acted unlawfully and, where appropriate, prosecute and punish.

"The Operation in Gaza: Factual and Legal Aspects" fell on deaf ears, including those of the Goldstone Mission. While complaining that the Israeli government refused to cooperate with its investigation, the Goldstone Report virtually ignored Israel's 159-page official statement, packed with critical facts and pertinent legal analysis and available online to all the world.⁷

The second major official statement by the Israeli government, "Gaza Operation Investigations: An Update" (January 29, 2010), was prepared in response to a request from un Secretary General Ban Ki-Moon.⁸ A good part of the 46-page document sketched Israel's military justice system and the role of the Attorney General's Office and the Supreme Court in overseeing it; how complaints of unlawful conduct in war in Israel are brought; the role of the military advocate general in screening, reviewing, and referring cases; the conduct of command investigations, which evaluate the performance of forces in the field and which yield information relevant to unlawful conduct; the mechanics of criminal investigations and prosecutions; and the substantial similarity of Israel's multilayered system to those of the United Kingdom, United States, Australia, and Canada.⁹ In passing, the update noted that "Under international law, the responsibility to investigate and prosecute alleged violations of the Law of Armed Conflict by a state's military forces falls first and foremost to that state."

In addition, the update indicated that the idf had launched 150 investigations arising out of the Gaza operation, 36 of which had been referred for criminal investigation in which "criminal investigators have taken evidence from almost 100 Palestinian complainants and witnesses, along with approximately 500 idf soldiers and commanders." For every one of the 34 allegations of harm to civilians or damage to civilian property discussed at length in the Goldstone Report, the idf had initiated an investigation — 22 of which the idf pursued before the report's publication, and twelve of which it promptly pursued after the report aired them.

While no judicial system is perfect, given the substantial similarity of Israel's system for investigating and prosecuting unlawful conduct in war to those of the United Kingdom, United States, Australia, and Canada, it is hard to see how any existing judicial system would be able to pass muster if Israel's were judged inadequate. Yet the Goldstone Report found Israel's inherently inadequate:

After reviewing Israel's system of investigation and prosecution of serious violations of human rights and humanitarian law, in particular of suspected war crimes and crimes against humanity, the Mission found major structural flaws that in its view make the system inconsistent with international standards.

The Goldstone Report reached this extraordinary conclusion without comparing the Israeli system with others, and well before Israel could possibly have made substantial progress in undertaking the investigations — involving not roped-off and locked-down crime scenes but in many cases battlefields in enemy territory — of the allegations that arose out of Operation Cast Lead.

The report's radical judgment might make sense on the supposition that since states are interested parties, their judicial systems should not be assigned responsibility by international law to investigate and prosecute war crimes, which involves them serving as judges in their own cause. In that case, however, the Goldstone Report's critique should have been directed not at Israel but at international law itself which, as it currently stands, primarily imposes that responsibility on states.

Instead, the Goldstone Report cultivates the appearance of applying international law while actually rejecting its imperatives and replacing them with its own. But it does not do so in an evenhanded fashion. Compounding its disregard for law, it evinces little interest in the capability or willingness of Hamas, the governing authority in Gaza, to enforce the law of armed conflict. Suffice it to say that Hamas has made no discernible progress in investigating and punishing war crimes connected to the Gaza conflict, which should not be a surprise since Hamas has no discernible system of military justice for discharging its obligation to do so. And, undermining their claims to be impartial and objective upholders of international law, neither the hrc nor the General Assembly nor the greater international human rights community seems particularly troubled by this additional failure on the part of Hamas to comply with its legal obligations.

Israel's January 2010 document also provided striking rebuttals of Goldstone Report factual findings:

• The Goldstone Report found that, in the absence of legitimate military objectives, Israel intentionally destroyed the Namar water-wells complex — including pumping machines, pipes, and civil-administration buildings — by air strikes to deprive Gaza's civilian population of clean drinking water. Israel's update, however, furnished photographic evidence demonstrating that the Namar water wells were located inside the walls of a Hamas military compound.
•  
• The Goldstone Report found that Israel undertook a "deliberate and premeditated strike" to damage a vacated Gaza wastewater-treatment plant in the al-Sheikh Ejlin neighborhood to cause raw sewage to flow into and destroy farmland. Israel's update, however, reported that the damage to the plant did not stem from a deliberate idf attack. The idf may have damaged the plant inadvertently during a battle with Hamas fighters, or Hamas fighters themselves may have attacked the plant to set loose sewage to hamper the movements of Israeli tanks operating in the area. But "there was no physical evidence or eyewitness testimony to support the conclusion of the Human Rights Council Fact-Finding Report."
• The Goldstone Report found that Israel conducted an aerial strike on the el-Bader flour mill to deny Gaza's civilian population the means of providing for their own sustenance and to render them more dependent on Israel. Israel's update, however, pointed out that the Goldstone Report contains no evidence that the flour mill was struck from the air, that "photographs of the mill following the incident do not show structural damage consistent with an air attack," and that the available evidence indicates the flour mill was struck by tank shells during combat operations.
• The Goldstone Report found that Israel destroyed the Abu-Askar family home despite its "unmistakably civilian nature." Israel's update, however, maintained that "due to its use as a large storage facility for weapons and ammunition, including Grad missiles, the house of Muhammad Abu-Askar was a legitimate military target." It also emphasizes that because the idf issued warnings to the family to evacuate and delayed the attack until the night, when fewer civilians were present, no civilian casualties ensued.

These are by no means the only examples of Goldstone Report factual findings whose bases in fact are doubtful. Even a few such, however, call into the most serious question the reliability of all Goldstone Report factual findings.

And the unreliability of the report's factual findings undercuts the validity of its legal findings. That's because the factual findings are critical to judgments about the central legal questions addressed by the Goldstone Report, which concern whether Israel honored the master concepts of the law of armed conflict, the principle of distinction, and the principle of proportionality. The principle of distinction requires parties to a conflict to distinguish between civilian populations and combatants. The principle of proportionality restricts the use of force in armed conflict to the achievement of legitimate military objectives and requires that the force used be reasonably expected not to cause injury to civilians or damage to civilian objects that would be clearly excessive in relation to the anticipated military advantage. What constitutes a legitimate military objective, what constitutes reasonable expectations, and what constitutes clearly excessive injury to civilians or damage to civilian objects in relation to anticipated military advantage — indeed, what constitutes a civilian or civilian object in an age of asymmetric warfare — are intensely context-sensitive questions. They turn not only on the facts but on difficult military judgments about strategy and tactics. Whether Hamas used water-wells, sewage treatment plants, flour mills, and residential homes, along with mosques, hospitals, and police officers, as part of its combat operations are factual questions bound up with questions about Hamas's strategy and tactics. Answering them accurately is crucial to determining whether Israel crafted a strategy and adopted tactics consistent with the principles of distinction and proportionality. To the extent that the Goldstone Report got the facts wrong and mischaracterized or downplayed Hamas's strategy and tactics — and the evidence is that it did this to an egregious extent — its legal findings must be rejected.

To be sure, in "Gaza Operation Investigations: An Update," the Israeli government sought to present its judicial system and wartime conduct in the best light, and to set forth the facts and read international law in a manner most favorable to its interests. Therefore, its accounts should be subject to intense public and professional scrutiny. Regrettably, the update has largely been ignored.

The March 2010 Intelligence and Terrorism Information Center study, "Hamas and the Terrorist Threat from the Gaza Strip," focuses on the comprehensive failure of the Goldstone Report to deal with Hamas as the governing authority of the Gaza Strip and as the main agent in Gaza undertaking terrorist operations against Israel. Indeed, except as a target of Israeli or Palestinian Authority violence, the Goldstone Report renders invisible Hamas and the other terrorist organizations operating in Gaza:

The Report does not refer to them as terrorist organizations, but rather calls them "Palestinian armed groups." By using such terminology, the Report ignores or at least obscures and minimizes the terrorist nature of the organizations which fire rockets at Israeli civilians (defined by the Report as a "war crime"). In fact, the Report does not deal with the nature of Hamas and the other terrorist organizations in the Gaza Strip at all. It does not mention Hamas' ideology (for example, the Hamas Charter, which advocates the destruction of the State of Israel), its overall strategy (the employment of terrorism and its consistent resistance to the peace process), the military infrastructure it constructed in the Gaza Strip, its radical Islamic nature, its use of force and occasional brutality in dealing with opponents (particularly Fatah), the process of enforced Islamization of the Gaza Strip, and the direction and support it receives from its headquarters in Damascus. The Report does not refer to Hamas and other organizations in the Gaza Strip as terrorist organizations, in complete contradiction to not only the Israeli but also the American and European Union positions, all of which have designated them, both their political and military wings, as terrorist organizations.

It is no surprise then that the Goldstone Report ignores or denies a host of related facts about Hamas crucial to the evaluation of the lawfulness of Israel's conduct in Operation Cast Lead. Among these are Hamas's systematic integration of its political administration and its armed forces; Hamas's massive military buildup following Israel's total evacuation from the Gaza Strip in 2005, including Hamas's substantial increase in the number, range, and destructive power of its rockets; and the funding and arming of Hamas by Syria and Iran.

The Goldstone Report omits these facts critical to understanding Israel's operation while uncritically accepting Hamas's narrative about the cause of the conflict and Hamas's version of specific events during Operation Cast Lead. Indeed, the Goldstone Report goes so far as to assert that "In the framing of Israeli military objectives with regard to the Gaza operations, the concept of Hamas's 'supporting infrastructure' is particularly worrying as it appears to transform civilians and civilian objects into legitimate targets." That is a perverse inversion: The unlawful transformation of civilians and civilian objects into supporting infrastructure for violent jihad against Israel is, as the itic study shows at great length and with massive supporting evidence, a documentable and essential feature of Hamas's strategy.

Israel's lengthy preliminary July 2009 statement on the factual and legal aspects of Operation Cast Lead, its January 2009 update, and the extensively documented March 2010 itic study on Hamas terrorism discredit the Goldstone Report's factual and legal findings. But there is a larger and more fundamental problem. Under prevailing international law, the very Goldstone Mission lacked proper legal foundations.

 

Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University, where he chairs the Koret-Taube Task Force on National Security and Law.

Copyright - Original materials copyright (c) by the authors.