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| ISBN-13: | 9780817914363 |
|---|---|
| Publisher: | Hoover Institution Press |
| Publication date: | 09/01/2013 |
| Series: | Hoover Institution Press publication ; |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 112 |
| File size: | 2 MB |
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Israel and the Struggle Over the International Laws of War
By Peter Berkowitz
Hoover Institution Press
Copyright © 2012 Board of Trustees of the Leland Stanford Junior UniversityAll rights reserved.
ISBN: 978-0-8179-1436-3
CHAPTER 1
An Opportunity to Reorient
To the astonishment of Israel's friends and foes alike, on April 1, 2011 in the Washington Post, below the understated title "Reconsidering the Goldstone Report on Israel and War Crimes," Justice Richard Goldstone reversed himself. Published in September 2009 as the "Report of the United Nations Fact Finding Mission on the Gaza Conflict," the Goldstone report quickly became the proof text for those determined to denounce Israel as an outlaw nation. Accordingly, Israeli Prime Minister Benjamin Netanyahu promptly responded to Goldstone's reconsideration by demanding that the United Nations retract the report. Meanwhile, Goldstone's mission colleagues — London School of Economics professor Christine Chinkin; Colonel Desmond Travers, a former officer in Ireland's Defence Forces; and Supreme Court of Pakistan advocate Hina Jilani — have shown no sign of changing their minds. On April 4, three days after the publication of Goldstone's reconsideration, Jilani declared that "no process or acceptable procedure would invalidate the UN Report," and neither she nor the other members have indicated any need to reconsider since.
Yet however determined his colleagues have been to stick to their story and regardless of the failure of the UN to officially repudiate the report, Goldstone's reconsideration is noteworthy. Goldstone withdrew the gravest charge that he and his colleagues had leveled against Israel and its three-week Gaza operation of December 2008 — January 2009, which aimed at stopping Hamas's firing of thousands of mortar shells, rockets, and missiles at civilian populations in southern Israel. According to Goldstone — former justice of the Constitutional Court of South Africa and former prosecutor of the International Criminal Tribunals for the former Yugoslavia and for Rwanda — it is now well established, both by Israeli military investigations and by "the final report by the UN committee of independent experts" (chaired by former New York judge Mary McGowan Davis) that "civilians were not intentionally targeted as a matter of policy" by Israel. Coming from Goldstone — chosen to head the Human Rights Council's investigation in part because of the prestige he brought as a leading figure among international human rights lawyers — this exoneration was as welcome as it was unexpected. But, like much else in his Post piece, it was partial and misleading.
Goldstone wrote as if he were confronting a lingering suspicion that finally could be laid to rest. He failed to acknowledge that nothing had done more than the UN mission he led and the report it issued — endorsed by the UN General Assembly in November 2009 by a vote of 114 to 18, with 44 countries abstaining — to promulgate the slander that Israel had adopted an essentially criminal strategy in Operation Cast Lead.
In fact, the Goldstone report culminates with the legal finding — not a factual finding or suspicion but a legal conclusion — that in the Gaza conflict Israel undertook "a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability."
With this calumny, the Goldstone report went beyond asserting a moral equivalence between Israel and the terrorists it was fighting. It affirmed that Israel was worse than Hamas, since Israel was a state, since Israel used state-of-the-art weaponry, and since the death and destruction it supposedly deliberately inflicted on civilians in Gaza was much greater in raw numbers than the harm to civilians in southern Israel caused by eight years of Hamas bombardment.
In the Washington Post, Goldstone obliquely blamed his report's most egregious errors on Israel's refusal to cooperate: "The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion." This is incorrect. For one thing, Goldstone and his colleagues did not leave matters at "allegations"; they made numerous legal findings that Israel, as a matter of strategy and policy, targeted civilians. For another, it was not as Goldstone now contends that he and his team lacked evidence to avoid the conclusion of intentionality. Rather, the evidence he and his team collected and on which they based their legal findings was always insufficient to reasonably reach the conclusion that the Israel Defense Forces (IDF) had committed war crimes and crimes against humanity.
The relevant body of law is international humanitarian law, a part of the international laws of war that "seeks to limit the effects of armed conflict" and is also known as the laws of war or the law of armed conflict. To find that a military has used unlawful or disproportionate force, the international laws of war require an analysis of the understandings and intentions of commanders and soldiers and a determination of whether their decisions and conduct were reasonable in the circumstances. The Goldstone report contains no such analysis, in significant measure because it lacked information about the understandings and intentions of Israeli commanders and soldiers. True, Israel declined to cooperate, but it was under no legal obligation to do so. The Goldstone report, moreover, was, as a matter of law, precluded from inferring criminal intent either from Israel's decision not to cooperate or from the absence of information about Israeli understandings and intentions. Nevertheless the Goldstone report leapt to grim legal conclusions about the use of disproportionate force without such elementary information as the rules of engagement under which IDF commanders and soldiers operated. Such information was critical because Israel's terrorist adversaries relentlessly sought to blur the distinction — fundamental to the international laws of war — between civilians and combatants by unlawfully positioning themselves in densely populated areas and unlawfully fighting without uniforms. In short, the Goldstone report's legal finding that Israel sought to "terrorize a civilian population" was based on inadequate factual findings and so was inherently invalid.
Goldstone's reconsideration also withdrew — without making clear it was doing so — a scurrilous charge against the Israeli legal system. It cited approvingly the McGowan Davis report, which notes that "'Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza' while 'the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.'"
In rightly crediting Israel's investigations, however, Goldstone omits mention of his report's baseless finding that Israel's system of civilian and military justice "does not comply with" the principles of international law. The Goldstone report reached this damning conclusion even though Israel's procedures for investigating war crimes allegations compare favorably with, and in important respects are more exacting than, those of the United States, Canada, the United Kingdom, and Australia.
Some distinguished Israelis, including Haaretz journalist Aluf Benn and Hebrew University of Jerusalem Professor Shlomo Avineri, have argued that an important lesson to be learned from Goldstone's reconsideration is that Israel ought to have cooperated with the Goldstone mission and should cooperate with similar international investigations in the future. Even if the investigators are biased, better for Israel to make its case and get it on record before official conclusions are published and ratified by the UN.
That is the wrong lesson. Israel should not acquiesce to one set of rules and standards for itself and another for all other states. Under the international laws of war, the right and the obligation to investigate and prosecute war crimes belongs in the first place to the nations accused. Only when a country has shown itself unwilling or unable to exercise its right and discharge its obligation are international bodies authorized to pursue war crimes investigations. In fact, Israel, whose devotion to the international laws of war is something of which its soldiers and citizens should be proud, was following established procedures and in the early stages of its investigations when the Goldstone team began work. Israel should not cooperate in the abrogation of its rights and responsibilities as a sovereign nation.
The right lesson is that Israel must continue to cultivate respect for the international laws of war while vigorously championing a sound understanding of them at home and abroad. Indeed, the Goldstone reconsideration provides an excellent opportunity to reorient public discussion, and not only for Israel but also for the United States, which, like its only liberal and democratic ally in the Middle East, is locked in a long war against transnational terrorists.
The international laws of war arise out of the determination to strike a reasonable balance between military necessity and humanitarian responsibility. These can be mutually supportive: in repelling aggression an army in the first place aims to protect its own civilians. But very often they collide as armies seek to defeat their opponents with the smallest cost to themselves in blood and treasure, which can readily result in unintended harm to the other side's civilians and civilian objects. Giving both military necessity and humanitarian responsibility their due is the hard task and worthy ambition of the international laws of war.
Goldstone rightly observes at the end of his reconsideration that "the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies." It's high time to recognize that the chief threat to international law and order comes not, as many western intellectuals and international human rights lawyers are inclined to believe, from Israel and the United States, whose militaries devote untold and unprecedented hours to studying and enforcing the laws of war, but from the terrorists, who utterly reject them. And it's also high time to recognize that in our age the struggle over the international laws of war has become critical to the defense of liberal democracy in a dangerous world, and therefore critical to the US-Israel partnership.
CHAPTER 2The Goldstone Report
The controversy over the "Report of the United Nations Fact Finding Mission on the Gaza Conflict" (September 15, 2009), more commonly known as the Goldstone report, has died down. Yet notwithstanding Justice Goldstone's April 2011 reconsideration and partial retraction in the Washington Post, the report's far-reaching defects and their implications for the international laws of war have yet to be fully 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 against Hamas fighters in the Gaza Strip on December 27, 2008, and concluded on January 18, 2009. But another and more far-reaching issue, which should be of great importance 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. This shift impairs the ability of liberal democracies to deal lawfully and effectively with the complex and multifarious threats presented by transnational terrorists.
Notwithstanding a veneer of equal interest in the unlawful conduct of both Israel and the Palestinians, the Goldstone report 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 mortar shells, rockets, and missiles 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. Hamas had intensified these attacks following its victory in the January 2006 Palestinian Legislative Council elections over its rival Fatah, and its subsequent bloody expulsion of Fatah and total takeover of Gaza from the Palestinian Authority in June 2007. While the Goldstone report recognized that the targeting of Israeli civilians by Palestinian armed groups constituted war crimes and indicated that here and there Palestinians may have committed war crimes during the Gaza operation, 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 found that Israel committed crimes against humanity — the gravest breaches of international law — by implementing a deliberate policy of terrorizing Palestinian civilians and destroying civilian infrastructure.
Israel has provided three major responses to the Goldstone report. In March 2010 the Intelligence and Terrorism Information Center (ITIC), an Israeli NGO that works closely with the Israel Defense Forces (IDF), 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." 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" (July 29, 2009), and "Gaza Operation Investigations: An Update" (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 Justice Goldstone and his colleagues dealt seriously with the incisive criticisms published by scholars and journalists of both the report's factual and legal findings.
But the deeper issue for international law concerns the right and the responsibility of states to make lawful judgments 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 misunderstood and misapplied 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 leads to the heart of the matter. 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 divergent views about the best means for securing individual rights while maintaining international order.
Still, long-established rules and practice are clear. Authoritative sources in international law assign primary responsibility for judgments about whether war has been conducted in accordance with the international laws of war 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 liberal democracies, which are devoted to securing individual rights and are based on the consent of the governed — are the best and most legitimate means of achieving peace, preserving political freedom, and exercising authority over the individual. And that teaching supposes that states are likely to be more sober in assessing their actions and those of other states than are international organizations because states must bear the burden of any reform or rule, or failure to reform and impose rules.
(Continues...)
Excerpted from Israel and the Struggle Over the International Laws of War by Peter Berkowitz. Copyright © 2012 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
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Table of Contents
Contents
Preface,CHAPTER ONE An Opportunity to Reorient,
CHAPTER TWO The Goldstone Report,
CHAPTER THREE The Gaza Flotilla,
CHAPTER FOUR Conserving the International Laws of War,
About the Author,
About the Hoover Institution's Task Force,
on National Security and Law,
Index,