by Peter Berkowitz
3rd part of 4
The Human Rights Council cast dark aspersions on Israel’s system of military justice and civilian oversight.
In a February 2006 letter explaining his decision to decline the many requests to investigate war crimes allegations against coalition troops in Iraq, icc prosecutor Luis Moreno-Ocampo stressed that the scale of the alleged crimes was critical.19 tiate an investigation a case must meet both a specific and general gravity standard. The specific standard involves crimes committed “as part of a plan or policy or as part of a large-scale commission of such crimes.” The general standard requires that the magnitude of the crime be of surpassing scale. Ocampo found no evidence that the alleged crimes committed by coalition forces in Iraq were part of any plan or policy, so they failed to meet the specific gravity standard. He further observed that the cases the icc had accepted involved the willful killing of hundreds of thousands of people, large-scale sexual violence and abductions, and the displacement of millions. The alleged misconduct in Iraq did not belong in the same class: “The number of potential victims of crimes within the jurisdiction of the Court in this situation — 4< to 12 victims of willful killing and a limited number of victims of inhuman treatment — was of a different order than the number of victims found in other situations under investigation or analysis by the Office.” Thus the criminal allegations concerning coalition forces in Iraq didn’t meet the general gravity standard either. Therefore, Ocampo concluded that the charges were inadmissible for prosecution by the icc.
Like the principle of complementarity, the gravity standard reflects the primacy international law attaches to the right and responsibility of states to investigate and prosecute war crimes. It does this by creating an exceedingly high hurdle for icc intervention. The case that the Goldstone Report makes against Israel does not come close to clearing it. The report does accuse Israel of deliberately seeking to terrorize the Palestinian population — which, if true, would meet the specific gravity standard for admissibility. However, even if the Goldstone Report had not relied on a few stray remarks from Israeli officials, none of whom had responsibility for the idf’s strategy or tactics, and even if the report had not failed to examine the actual rules of engagement given by Israeli commanders to their troops, and had somehow met the specific gravity standard, it would still not have met the span class="smallcaps">icc’s general gravity standard. What is decisive is that while the number of civilian deaths for which the Goldstone Report found Israel responsible was considerably larger — in the hundreds — than the number involved in the complaints against coalition forces in Iraq, the number of deaths was nevertheless of a different order than those, as Ocampo explained in his letter on military operations in Iraq, that are necessary to meet the icc’s general gravity standard.
Because the allegations against Israel failed to meet the icc’s general gravity standard, the Goldstone Report’s recommendation that the Security Council refer the matter to the icc was without merit. In pressing those recommendations, the report not only displayed an ignorance or indifference to the law under which the icc operates. It also, and again, demonstrated its obliviousness to the right and responsibility of states to deal, in the first instance, with war crimes accusations.
Ocampo’s reasoning in his Iraq letter about the narrow limits within which the icc was designed to operate is in line with his general views about the presumption in international law that states are the appropriate initial authority for handling most criminal investigations and prosecutions. In his statement at his swearing in on June 16, 2003, he emphasized the principle of deference to national courts:
The Court is complementary to national systems. This means that whenever there is genuine State action, the Court cannot and will not intervene.
But States not only have the right, but also the primary responsibility to prevent, control and prosecute atrocities. Complementarity protects national sovereignty and at the same time promotes state action.
The effectiveness of the International Criminal Court should not be measured by the number of cases that reach it. On the contrary, complementarity implies that the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.
For this reason, the first task of the Office of the Prosecutor will be to establish links with prosecutors and judges from all over the world.
They continue to bear primary responsibility for investigating and prosecuting the crimes within the jurisdiction of the Court, and we are confident that they will make every effort to carry out their duties.
We wish to interact with them in order to establish a network of national and international prosecutors who will co-operate with each other and develop the ability to function together.20
One could hardly wish for a clearer statement from a better positioned authority affirming the primacy that international law accords to states to investigate and prosecute, unlawful conduct in war committed on their territory. By failing to appreciate this primacy, the Goldstone Mission infringed on Israel’s rights, interfered with its responsibilities, and contravened fundamental norms and principles of international law.
The only relevant cases where international authorities were given the power to preempt local prosecutions were the ad hoc tribunals for the former Yugoslavia and Rwanda, established in the 1990s in the midst of internal conflict and civic breakdown under conditions in which the normal presumption in favor of domestic accountability may seem to have been reversed. But those tribunals, for which Judge Goldstone served as prosecutor, are better seen as clarifying the limits to the deference international law grants to national courts. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda dealt with situations in which civil war and massive killing either overwhelmed the ability or demonstrated the unwillingness of national governments to undertake the impartial, independent, and diligent investigations and prosecutions of war crimes prescribed by international law. But in contrast to war-torn former Yugoslavia and genocide-ravaged Rwanda, Israel possesses a judicial system, as any impartial and objective review would show, that compares favorably to the most admired judicial systems in the world.
The report’s recommendation that the Security Council refer the matter to the ICC was without merit.
The flawed legal foundations of the Goldstone Report do not imply that international institutions were obliged to sit on the sidelines until Israel had completed its investigations and prosecutions arising out of Operation Cast Lead. For example, the icrc’s contribution respected Israel’s rights and responsibilities as a sovereign state. In the summer of 2009, the icrc submitted a confidential report to the government of Israel — it involved no recommendations to other international bodies and neither sought nor had any impact on international public opinion. It was not intended to accomplish anything other than to provide information to enable Israel to better carry out its active duty under international law to investigate and prosecute war crimes connected to the Gaza operation.
Had it proceeded in the spirit of the icrc, the Human Rights Council too might have played a lawful and constructive role in the months following the conclusion of the Gaza conflict. It might have, for example, appointed a task force to review the complex and multi-layered judicial system that Israel has established for the investigation and prosecution of war crimes. A competent review would have included a comparison of Israel’s system with that of other nations. And a lawful review would have involved submission of a confidential report to Israel that identified where the country’s judicial system fell short of international standards as reflected in best practices around the world — as opposed to failing to live up to an entirely idealized system of international criminal justice. This would have respected Israel’s rights, and aided Israel in complying with its responsibilities, under international law.
How little the majority of members of the Human Rights Council actually care about the impartial and objective application of international law and the protection of human rights was shown in May 2009, less than two months after the hrchad authorized the Goldstone Mission. Sri Lanka had just defeated the Tamil Tigers in their 25-year war. un officials estimated that in its advance into the Tamil north the Sri Lankan army killed more than 10,000 civilians, with some estimates at the time going as high as 20,000 and current estimates reaching 30,000. Credible reports indicated that government forces herded civilians into a “no fire” zone in the north and then shelled it. Cell phone video, which the top un envoy in Sri Lanka considered genuine, showed government forces executing naked and bound captives. The government was directly linked to hundreds of disappearances, and held approximately 300,000 civilians in poor conditions in detention camps. Nevertheless, the Human Rights Council rejected a draft resolution that deplored the actions of both sides, and which called for an independent investigation. Instead, on May 28, 2009, less than two months after authorizing the Goldstone Report, the Human Rights Council passed resolution s-11/1, which “reaffirm[ed]” the un Charter’s “principle of non-interference in matters that are essentially within the domestic jurisdiction of States.”21 The only condemnation the resolution offered was directed at the defeated Tamil Tigers. The Sri Lankan government received nothing but encouragement from the Human Rights Council for its conduct. Eight months later, in January of 2010, after being reelected as president of Sri Lanka (with votes primarily from those of his own ethnicity), President Mahinda Rajapaksa declared that his victory proved that his government had committed no war crimes, and that no investigation, internal or otherwise, was needed. The United Nations Human Rights Council could see no reason to disagree.22
Who judges?
The united nations Human Rights Council is a travesty. A majority of its members appear to take only the most cynical view of international law, conceiving of it as a tool for punishing their enemies and rewarding their friends, and regarding Israel as the most odious of their enemies and the principal threat to international order.
But it would be a mistake to conclude from the hrc’s abuse of Israel and the flawed legal foundations of the Goldstone Report that the Western international human rights lawyers, professors of law, and intellectuals who have uncritically championed the Goldstone Report’s findings and endorsed its recommendations hold a cynical view of international law. On the contrary, many supporters of the Goldstone Report are animated by an idealized understanding of international law according to which it crystallizes humanity’s considered judgments about morality and war, and an idealized understanding of international institutions according to which the men and women who operate them embody a form of transnational or global governance that operates above the fray of nation-state power politics. To advance the cause of international peace and global justice, they therefore maintain, critical judgments about the lawful conduct of war — including the crucial question in asymmetric warfare of what constitutes a proportional use of force — should be taken out of the hands of nation-states and placed in those of international institutions.
Many are blinded to the Goldstone Report’s grave flaws by the higher cause they believe it serves.
These men and women are blinded to the Goldstone Report’s grave flaws by the higher cause they believe it serves. Indeed, the scandal of the Goldstone Report — which includes both its grave flaws and the blindness to them of many international human rights lawyers — gives good reasons, certainly for liberal democracies with well-developed judicial systems, to wish to preserve the right and primary responsibility of states, inscribed in authoritative sources of international law, to adjudicate the difficult questions that arise under the international law of armed conflict.
The worthy ambition to hold perpetrators accountable for unlawful conduct in war must not be allowed to obscure the obstacles to designing international institutions capable of impartially and objectively crafting, adjudicating, and enforcing the law of armed conflict. These include the emergence of a transnational elite with interests and ambitions of its own; the lack among international organizations’ officials and staff of the benefits of democratic accountability and national security responsibility for the rules they seek to make and implement governing the conduct of war; the domination of the General Assembly by authoritarian states; and the absence in many cases of agreed upon authority for adjudicating and enforcing international law. Until these obstacles are overcome — and we are a long way off — justice will be better served by preserving the right and primary responsibility of states to vindicate, through their judicial systems, the international law of armed conflict, especially when those states are established liberal democracies. International institutions should be reserved, as the principle of deference implies, as a judicial system of last resort.
Indeed, the revolution in international law that the Goldstone Report seeks to advance affects directly only a small number of countries, all liberal democracies. Russia, China, Iran, and the host of lesser authoritarian regimes around the globe pay little more than lip service to human rights and their obligations under the laws of armed conflict. Transnational terrorists openly scoff at such rights and obligations. Meanwhile, a substantial majority of the world’s liberal democracies, whose commitments to individual freedom and human equality inculcate respect for human rights and the principles that undergird the international law of armed conflict, seldom take up arms. Few liberal democracies depend on a daily basis on their armed forces to defend their way of life. And paradoxically, while no armies in the history of warfare have devoted greater attention or energy than those of Israel and the United States to distinguishing and protecting civilians in warfare and ensuring that the force they use in armed conflict is proportional to the threat faced, no armies today come under greater worldwide attack for violating the laws of war and human rights than those of Israel and the United States.
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.
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