The Goldstone Report and International Law Part IV

 

by Peter Berkowitz

 

4^th part of 4

 

Few liberal democracies depend on a daily basis on their armed forces to defend their way of life.

 

Although Israel and the U.S. confront a common enemy, their strategic situations differ dramatically. Israel is tiny and faces an array of adversaries — to the immediate north Iran-sponsored Hizbullah and Iran-sponsored Syria; to the immediate south and immediate east Iran-sponsored Hamas; and a thousand miles to the east, but within Shahab III ballistic missile range, the Islamic Republic of Iran itself — that seek its destruction through violent jihad. It therefore maintains the region's most powerful military and a nuclear deterrent. Meanwhile, the United States remains the world's sole superpower and the only nation capable of projecting force anywhere in the world promptly and decisively. It is surrounded by friendly neighbors and vast oceans while shouldering responsibility for keeping open the world's sea lanes, ensuring safety in the skies, and generally serving as the chief law enforcement officer for the international political and economic order. And notwithstanding the Obama administration's awkward equivocations, the U.S. remains engaged in a protracted transnational struggle with the same forces of Islamic extremism that menace Israel.

Despite their common enemy, Israel and the U.S. stand in different relationships to the project, of which the Goldstone Report is one initiative, to expand the authority of international institutions to take primary responsibility for critical judgments about the lawful conduct of war. It is obviously in Israel's interest to oppose such a transfer of power to international bodies, which are stacked against it. And while Washington has provided indispensable support over the decades for Israel's security interests, it is just as easy to understand why the U.S., whose wealth, power, and Security Council veto insulate it from the machinations of the General Assembly and its subsidiary organs, might wish to downplay the matter.

But that is shortsighted. There is a danger that the spread of practices among international bodies and an accumulation of precedents concerning international law will weigh down the United States in the struggle that it shares with Israel and others to combat, in accordance with the law of armed conflict, transnational Islamic terrorism. Of course that will only happen if the U.S. recognizes such practices and precedents as authoritative. Encouragement to do so comes from powerful trends in American universities and law schools, where professors for going on a generation have been cultivating in their students the view, which animates the Goldstone Report, that critical judgments about the lawful conduct of war are indeed properly and in the first instance the province of international institutions.

That view is suited to a world in which all nation-states incline to peace and govern themselves in accordance with liberal and democratic principles. Unfortunately, that is not the world in which we live. Nor is it a world we can expect to emerge anytime soon.

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.

 

Notes

Available at http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_ Report.pdf (this and all subsequent web links accessed July 19, 2010).

² Available at http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/pdf/g_report_e1.pdf

³ Available at http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperation.pdf

⁴ Available at http://www.mfa.gov.il/NR/rdonlyres/8E841A98-1755-413D-A1D2-8B30F64022BE/0/GazaOperationInvestigationsUpdate.pdf

⁵ See, for example, Alan Dershowitz, "The Case Against the Goldstone Report: A Study in Evidentiary Bias," available at http://www.alandershowitz.com/goldstone.pdf; Moshe Halbertal, "The Goldstone Illusion: What the un report gets wrong about Gaza — and war," New Republic (November 6, 2009), available at http://www.tnr.com/article/world/the-goldstone-illusion; "Opportunity Missed," Economist (September 17, 2009), available at http://goldstonereport.org/pro-and-con/critics/308-the-economist-opportunity-missed; Joshua Muravchik, "Goldstone; An Exegesis," World Affairs (May/June 2010), available at http://www.worldaffairsjournal.org/articles/2010-MayJune/full-Muravchik-Traub-MJ-2010.html; and Richard Landes "Goldstone's Gaza Report: Part One: A Failure of Intelligence," and  "Goldstone Gaza Report: Part Two: A Miscarriage of Human Rights," Meria (December 2009), available at http://www.gloria-center.org/meria/2009/12/landes1.html and http://www.gloria-center.org/meria/2009/12/landes2.html.

⁶ See, for example, Laurie R. Blank, "The Application of ihl in the Goldstone Report: A Critical Commentary," Yearbook of International Humanitarian Law 12 (2009), "Emory Public Law Research Paper No. 10-96," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1596214; Asa Kasher, "Operation Cast Lead and the Ethics of Just War," available at http://www.goldstonereport.org/procedural-flaws/legal-reason-ing/378-asa-kasher-operation-cast-lead-and-the-ethics-of-just-war-azure; and Keith Pavlischek, "Proportionality in Warfare," New Atlantis (Spring 2010), available at http://www.thenewatlantis.com/publications/proportionality-in-warfare.

⁷ Judge Goldstone contended that Israel's refusal to cooperate with his mission was the cause of "any omission" of "information and evidence" concerning "actions by Hamas or other Palestinians groups in Gaza." See his letter of October 29, 2009 (http://price.house.gov/news/pdf/Goldstone_letter.pdf), to Representative Howard Berman, chairman of the House Committee on Foreign Affairs, and Representative Ileana Ros-Lehtinen, ranking member of the House Committee on Foreign Affairs, in response to a U.S. House of Representatives draft resolution condemning the Goldstone Report (the Resolution was passed by a large majority on November 3). Judge Goldstone's contention is unpersuasive. Besides ignoring Israel's publicly available account, which detailed "actions by Hamas or other Palestinian groups in Gaza," Judge Goldstone and his colleagues also neglected publicly available material published by Hamas concerning its unlawful political ambitions and unlawful methods of war. Indeed, they are not a closely guarded secret. A good place to start is Hamas's 1988 Charter, also readily available online, http://avalon.law.yale.edu/20th_century/hamas.asp. It declares, among other things, that Hamas "strives" to "raise the banner of Allah over every inch of Palestine" (Article 6); "Allah is its target, the Prophet is its model, the Koran its constitution: Jihad is its path and death for the sake of Allah is the loftiest of its wishes" (Article 8); and "There is no solution for the Palestinian question except through Jihad" (Article 13)."

⁸ The discussion of this document draws on Peter Berkowitz, "A Usurpation of National Sovereignty," National Review Online (February 10, 2010), available at http://article.nationalreview.com/424501/a-usurpation-of-national-sovereignty/peter-berkowitz.

⁹ See "Gaza Operation Investigations: An Update."

¹⁰ Available at http://domino.un.org/unispal.nsf/0/404e93e166533f828525754e00559e30.

¹¹ Mary Robinson, former president of Ireland and noted human rights champion, declined an early invitation to head such a Human Rights Council mission on the grounds that the hrc mandate referred only to violations by Israel and not also by Palestinians. Judge Goldstone frequently points out that he successfully sought a mandate that also included instructions to investigate unlawful conduct by Palestinians. Yet the evidence indicates that he and his colleagues carried out their investigation in the spirit of the original mandate.

¹² Available at http://domino.un.org/unispal.nsf/0/93c22cea660fa96e85257657004cf8e6.

¹³ Available at http://domino.un.org/unispal.nsf/0/9cc062414581d038852576c10055b066.

¹⁴ Available at http://www.icj-cij.org/docket/files/131/1677.pdf.

¹⁵ Available at http://www.un.org/ga/president/63/statements/onpalestine150109.shtml.

¹⁶ Available at http://www.icrc.org/ihl.nsf/9ac284404d38ed2bc1256311002afd89/6f96ee4c7d1e72cac12563cd0051c63a!OpenDocument.

¹⁷ See the icrc commentary "Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949," available at http://www.icrc.org/ihl.nsf/COM/380-600168?OpenDocument.

¹⁸ Available at http://untreaty.un.org/cod/icc/statute/romefra.htm.

¹⁹ Available at http://www.icc-cpi.int/NR/rdonlyres/F596D08D-D810-43A2-99BB-B899B9C5BCD2/277422/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.

²⁰ Available at http://www.iccnow.org/documents/MorenoOcampo16June03.pdf.

²¹ Available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/11specialsession/S-11-1-Final- E.doc.

²² On June 3, 2010, and more than a year since the hrc had formally pronounced its satisfaction with Sri Lanka's conduct, Philip Alston, special rapporteur on extrajudicial, summary, or arbitrary executions for the hrc, in presenting his annual report, called for an "independent international inquiry" into "allegations that as many as 30,000 persons were killed in Sri Lanka in the closing months of the conflict and that grave violations of human rights and humanitarian law were committed." At the same time, Alston called for an "independent international inquiry" into Israel's "attack on the humanitarian flotilla off Gaza," an attack that occurred only days before and in which Israeli commandos, in self defense, killed nine militants who were part of a mission to break Israel's lawful maritime blockade of Gaza.