The Goldstone Report and International Law Part II

 

by Peter Berkowitz

 

2^nd part of 4

Flawed legal foundations

The undertaking assigned to Goldstone and his colleagues by the United Nations Human Rights Council, the manner in which the Goldstone team carried out its mandate, and the General Assembly’s endorsement of the Goldstone Report contravened underlying norms and explicit provisions of existing international law.

According to the Goldstone Report, the Goldstone Mission was established on April 3, 2009, by the president of the Human Rights Council

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.

This mandate laid the foundations for an improper arrogation of power in two respects. First, it led to the trampling not only by the Goldstone Report but also by the Human Rights Council and the General Assembly on the primary responsibility assigned by the un Charter to the Security Council: to deal with international peace and security. Second, it paved the way for the infringement not only by the Goldstone Report but, again, by the Human Rights Council and the General Assembly of the primary responsibility that multiple sources of international law accord to nation-states to investigate, prosecute, and punish unlawful conduct in war. Both arrogations of power hindered the exercise by Israel of its right and impaired its ability to discharge its responsibility under international law to pursue war crimes allegations against its armed forces.

Consider first how the General Assembly, by means of the Goldstone Report and the Human Rights Council, subverted the division of powers established by the un Charter between it and the Security Council. In Article 24, the un Charter specifies that the Security Council has “primary responsibility for the maintenance of international peace and security.” At the same time, the un Charter also reserves a limited role for the General Assembly in matters pertaining to international peace and security. Article 10 gives it generally wide latitude to discuss and make recommendations while also establishing a crucial limitation: “The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matter.” Article 12 states the limitation clearly: “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.”

 

Not all actions undertaken by the General Assembly in connection to the Gaza conflict contravened the UN Charter.

On January 8, 2009, in the midst of Operation Cast Lead, the Security Council, consistent with Article 24 of the un Charter, seized itself of the Gaza conflict. The Security Council, which continued to be seized of the Gaza Operation, never asked the General Assembly for its recommendations. Yet the Goldstone Report, authorized by the Human Rights Council and thus by its parent body, the General Assembly, not only presented factual findings and legal findings but also offered recommendations to members of the United Nations and the Security Council. And both the Human Rights Council and the General Assembly endorsed those recommendations. In doing so, they directly contravened Article 12 of the un Charter.

Not all actions undertaken by the General Assembly in connection to the Gaza conflict contravened the un Charter. For example, while the battle still raged, and after the Security Council seized itself of the conflict, the General Assembly seized itself of the matter, too. The full General Assembly urged the parties to heed Security Council resolution 1860 (the U.S. abstained), which called for ceasing of hostilities. No interference with Security Council primacy occurred, because the General Assembly made no recommendations; it simply affirmed the Security Council’s resolution.

The same cannot be said of the Human Rights Council’s initial intervention, which also took place while the battle still raged. Despite the absence of a request from the Security Council, the Human Rights Council, which as a creature of the General Assembly is, according to well-established principles of international law, bound by the same rules as its parent, made definite recommendations in Resolution s-9/1 (January 12, 2009).¹⁰ Among other things, it “Call[ed] for the immediate cessation of Israeli military attacks”; “Demand[ed] that the occupying Power, Israel, immediately withdraw its military forces from the occupied Gaza Strip”; “Demand[ed] that the occupying Power, Israel, stop the targeting of civilians and medical facilities and staff and the systematic destruction of the cultural heritage of the Palestinian people”; and, not least, “Decide[d] to dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.”¹¹ All of the Human Rights Council’s demands for action by, and against, Israel conflicted with Article ¹² of the un Charter.

 

In September 2009, the Goldstone Report itself contravened Article 12 with ten pages of aggressive recommendations.

Other conflicts followed. In September 2009, the Goldstone Report itself contravened Article 12 with ten pages of aggressive recommendations. Among other things, it called for changes in Israel policy in the West Bank, in East Jerusalem, and in the detention of Palestinians; urged the un secretary general to submit the report to the Security Council; recommended that the Human Rights Council submit the report to the International Criminal Court (icc); and advised states around the world to invoke universal jurisdiction to initiate criminal investigations in their domestic courts. In its report of October 21, 2009, the Human Rights Council disregarded Article 12 by endorsing the Goldstone Report recommendations. And in its Resolution 64/10 of December 1, 2009, the General Assembly disregarded Article 12 by endorsing the hrc’s endorsement of the Goldstone Report recommendations.¹³

Judge Goldstone has contended that the report avoided trespassing on Security Council prerogatives by declining to address the legality of Israel’s decision to undertake the Gaza operation (jus ad bellum) and instead dealing only with the legality of the conduct of the operation (jus in bello). But concerning the central legal question that arises in asymmetric warfare, Judge Goldstone’s distinction can’t be sustained. That’s because, as the failings of the Goldstone Report make abundantly clear, it is often impossible to properly assess the proportionality of any particular exercise of force in asymmetric warfare absent an understanding of the complex circumstances that justified the use of force in the first place.

 

Judge Goldstone has contended that the report avoided trespassing on Security Council prerogatives.

Admittedly, the division of powers established by the un Charter does not appear to have had much impact in recent years on General Assembly practice. The General Assembly and its subsidiaries routinely make recommendations regarding matters of which the Security Council has declared itself seized but concerning which the Security Council has not requested General Assembly recommendations. Accordingly, one might argue that the Security Council’s failure to protest arrogation by the General Assembly and its subsidiaries of its prerogatives has rendered Article 12 a dead letter. Indeed, according to the International Court of Justice’s (icj) advisory opinion, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2004), the “interpretation of Article 12 has evolved,” and “the accepted practice of the General Assembly, as it has evolved, is consistent with Article 12, paragraph 1, of the Charter.”¹⁴ The icj opinion also notes, “It is often the case that, while the Security Council has tended to focus on the aspects of such matters related to international peace and security, the General Assembly has taken a broader view, considering also their humanitarian, social and economic aspects.”

Even if the icj opinion were sound, it could not be fairly said that the Goldstone Report restricted itself to the “humanitarian, social and economic” aspects of Israel’s Gaza Operation. Indeed, its mandate directed it not only “to investigate all violations of international human rights” but also all violations of “international humanitarian law,” an unfortunately confusing term for the international law of armed conflict. A further problem with this line of argument is that with a little ingenuity and a lot of brazenness all of the conduct of war can be subsumed under its humanitarian, social, and economic aspects. This was illustrated by the president of the General Assembly’s 63rd session, on January 15, 2009. In opening the 32nd Plenary Meeting of the 10th Emergency Special Session on the “Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory,” he contended that because Security Council resolution 1860 failed to address the humanitarian and economic crises brought about by the Gaza fighting and border restrictions it was incumbent upon the General Assembly to achieve a ceasefire and unimpeded humanitarian access.¹⁵  Under such a theory, since in war civilians inevitably suffer humanitarian, social, and economic harms, even where entirely unintended, the General Assembly will always have the prerogative to intervene in matters of international peace and security regardless of Security Council actions or requests.

To the extent that Security Council acquiescence to General Assembly usurpation has rendered Article 12 irrelevant, and the icj and the General Assembly have redefined war in terms of its humanitarian, social, and economic aspects, the Security Council’s role as the international body with “primary responsibility for the maintenance of international peace and security” has been significantly diminished. Indeed, these changes threaten to leave the system of collective security established by the un Charter dysfunctional.

 

National courts can be found disinclined or incompetent to carry out their duties under international law.

Even if the Human Rights Council and the General Assembly were not barred by the division of powers established by the un Charter from making recommendations about the Gaza conflict while the Security Council was seized of it and absent a request from the Security Council, there would still be sufficient reason to conclude that the Goldstone Report conflicted with the requirements of international law. The second set of reasons flows out of a principle of deference to national courts that is inscribed in a variety of authoritative international law sources. According to this principle of deference, or presumption of competence, in the first instance it is the responsibility of nation-states themselves to carry out investigations concerning allegations of war crimes and to prosecute and punish where warranted. Of course deference is not a blank check and the presumption is rebuttable: National courts can be found disinclined or incompetent to carry out their responsibilities under international law. Nevertheless, the principle of deference, rooted in the United Nations Charter, the Geneva Conventions and customary international law, and the statute governing the iccnbsp;creates a substantial protected sphere for the operation of domestic legal systems. The Goldstone Mission contravened the principle of deference.

Article 2 of the un Charter declares:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

One of the critical matters that international law places within the domestic jurisdiction of states is primary responsibility for the investigation and prosecution of war crimes. Article 146 of the Fourth Geneva Convention is a key legal source for this right and responsibility:

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defense, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949.¹⁶

To be sure, Article 146 articulates a general obligation binding on all High Contracting Parties, not just on parties to a conflict. But it was understood at the time of the drafting and has been recognized in foreign relations law since that priority goes to the states accused and the states aggrieved. This is in line with common sense: Those accused of grave breaches, particularly members of standing armed forces, are most likely to be in the territory of an accused or aggrieved state.

This understanding comports with International Committee of the Red Cross (icrc) commentary on Article 146:

The obligation on the High Contracting Parties to search for persons accused to have committed grave breaches imposes an active duty on them. As soon as a Contracting Party realizes that there is on its territory a person who has committed such a breach, its duty is to ensure that the person concerned is arrested and prosecuted with all speed. The necessary police action should be taken spontaneously, therefore, not merely in pursuance of a request from another State. The court proceedings should be carried out in a uniform manner whatever the nationality of the accused. Nationals, friends, enemies, all should be subject to the same rules of procedure and judged by the same courts. There is therefore no question of setting up special tribunals to try war criminals of enemy nationality.¹⁷

States’ active duty to search for war crimes perpetrators on their territory confirms the special role that accused and aggrieved states have under Article 146 to launch investigations, pursue suspects, make arrests, undertake prosecutions, and impose punishments.

Yet in the Gaza conflict, the General Assembly and its subsidiary, the Human Rights Council, showed no deference to Israel’s right and responsibility to deal with war crimes. Indeed, by prematurely authorizing an investigation even before the guns fell silent in Gaza, the Human Rights Council cast dark aspersions on Israel’s system of military justice and civilian oversight. And then well before Israel could reasonably have completed preliminary investigations of war crimes allegations, let alone initiated criminal trials, the Goldstone Report produced factual and legal findings that all but pronounced idf commanders and soldiers guilty of war crimes and crimes against humanity. This struck at the independence of Israel’s judicial system and interfered with its ability to discharge its Article 146 active duty. For how could the Israeli system provide a fair trial to defendants who, thanks to the Goldstone Report and its swift endorsement by the Human Rights Council and the General Assembly, were already convicted in the court of international public opinion?

Furthermore, the Goldstone Report’s recommendation that the Security Council refer Israel to the International Criminal Court in the event that Israel did not comply with the report’s specific demands showed a misunderstanding of the icc’s role. That misunderstanding is of special interest because it revolves around the very principle of deference to national courts over which the Goldstone Report rides roughshod.

The Rome Statute, which established the icc, confirms the primacy that international law assigns to states to handle war crimes accusations. Article 17 lays out what has come to be called the “complementarity principle.” It provides that a condition for the admissibility of a case is that “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”¹⁸ The principle of deference is also built into the severe restrictions on the crimes that the icc is authorized to handle. The icc does not exist to prosecute every crime that happens in wartime. It is reserved only for the most heinous and enormous, the kind of crimes, that is, whose very commission implies that state courts are unable or unwilling to investigate or prosecute.

 

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.