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Review Roundtable Part I: Goldstone and International Law

The Goldstone Report gained its prominence because of its UN auspices and the high credibility of Richard Goldstone as the Chair of the Fact Finding Mission appointed by the Human Rights Council. Other reputable inquiries (John Dugard’s parallel mission set up by the Arab League, Amnesty International, Human Rights Watch), aside from a host of journalistic and credible eyewitness accounts, converged on the overall criminality under international law of Operation Cast Lead. The video reports, together with the 100:1 casualty ratio, reinforced this impression, which has since been further validated by the testimony of IDF soldiers, diaries of persons living in Gaza at the time, by the Norwegian film Tears of Gaza, as well as by informal reports by UN staff stationed at the time of the attacks in Gaza. What the Goldstone Report did was to provide greater detail, especially in relation to several incidents, a set of recommendations for further action, and significantly, encouragement for accountability by way of the less conventional means of Universal Jurisdiction (application of norms of international criminal law by national courts against persons charged with violations regardless of where perpetrated) and civil society action.

As I have pointed out in the past, in many respects the Goldstone Report was unduly favorable to Israel in two major respects. First, it somewhat unfairly highlighted Hamas’s wrongdoing by failing to take account of Israel’s provocative attack on November 4, 2008 that broke the truce — a truce that had effectively reduced cross border violence for several months, and which Hamas proposed extending indefinitely, provided only that Israel end its unlawful blockade. Israel never even responded to such a proposal, seeming to be disinterested in restoring security on its southern border by normalizing its relationship with Gaza, or at least testing whether this would be possible.

More serious in some respects was the failure of the Goldstone Report to consider several key issues that might have led to even more damaging conclusions from Israel’s perspective: whether, given the truce, it was permissible for an occupying power to launch such an attack in the first instance, and more fundamentally whether a military assault on a densely populated urban society can ever be reconciled with international humanitarian law; and, further, whether the Israeli denial to Gaza civilians of the opportunity to leave the war zone during the period of combat was not itself a distinct crime against humanity. There were other issues that were not sufficiently investigated, including whether the casualty total should include those suffering from a variety of forms of post-traumatic stress, which was reportedly widespread among Gaza civilians, especially children.

The high visibility of the Goldstone Report highlights both the strengths and weaknesses of international law and the UN. Its strengths are shown by the extent to which findings of unlawfulness and criminality are influential with respect to world public opinion, and help to mobilize solidarity initiatives in civil society. There is no doubt that the BDS Campaign and the Freedom Flotilla were strengthened in resolve and capabilities due to the Goldstone Report. In what I call the Legitimacy War being waged, “lawfare” is an important battleground, and the outcome of the Goldstone mission was a major victory for those supporting the Palestinian struggle for self-determination.

At the same time, the refusal of the United States to back the recommendations of the Goldstone Report — on the contrary to use its political muscle to block and minimize its institutional impact within the UN — meant that the recommendations would likely remain stillborn, as has turned out to be the case. The UN cannot challenge unlawful and criminal behavior unless a geopolitical consensus is present. For instance, the use of force in Libya was backed by a geopolitical consensus, although a weak one due to the abstention of five Security Council members, including China and Russia, with regard to the crucial Resolution 1973.

In effect, the UN is strategically important as a site of struggle in the Legitimacy War, but it has been unable to protect the Palestinian people or safeguard their rights under international law. In this respect, its relevance is symbolic, and its frustrations and impressions of futility are behavioral. For external behavioral support, the Palestinians must look mainly to civil society as well as to their own tactics of resistance, of which the soft power challenge mounted by the first intifada was the most notable, creative, and effective to date.

Meanwhile, as mentioned earlier, the issue of the lawfulness of Israel’s recourse to an armed attack on this scale, given the situation that existed, seemed entirely unreasonable, and likely motivated by considerations other than providing security for southern Israel (i.e. influencing the outcome of imminent Israeli elections; striking at Hamas before Obama took office; sending a message to Iran; restoring the reputation of the IDF after its failures in the Lebanon War of 2006). It may be illuminating to analyze the issue both from the perspective of international law, which overwhelmingly regards Gaza as subject to the legal regime of “occupation” as set forth by the Fourth Geneva Convention, as supplemented by Protocol I agreed upon in 1977, and from the perspective of Israeli foreign policy, which views Gaza as a foreign entity due to the Israeli disengagement by way of the withdrawal of ground forces in 2005.

With regard to occupation, the basic character of the operation is manifestly incompatible legally with the fundamental obligation of the occupying power to rely on the minimum force with the least disruption of civilian life. The operation equally violates international law if the Israeli foreign policy view is adopted, as Israel’s right to use force would then be subject to the Charter framework that limits a right of self-defense to a response against a prior border-crossing armed attack. There is no way in which rockets that rarely caused human or property damage can be viewed as an armed attack or as creating a security threat that could only be reasonably met by such a large-scale military operation. There is some flexibility that has grown up over the years with respect to interpreting the right of self-defense, but nothing in past practice or legal authority would provide support for the scope and intensity of the military operation carried out by Israel in 2008-09.

As I have tried to explain, relying on UN inquiries to establish illegality and criminality is of great symbolic relevance in promoting Palestinian objectives by way of conducting a Legitimacy War. The limitations are due to the geopolitical unwillingness to regard such findings as entailing behavioral consequences, such as activating the accountability procedures available by way of the International Criminal Court. Even should the ICC get the opportunity to indict and prosecute, it would in all likelihood have no capacity to apprehend and punish. At the same time, such a conviction would be a further success from a legitimacy perspective. Also relevant is the heightened possibility that national courts would rely on Universal Jurisdiction to investigate allegations of criminality of Israeli political and military commanders associated with policies that were previously condemned by UN inquiries. In recent years, several European countries have been sufficiently threatening about the possibility of detaining and prosecuting Israeli officials before their national courts as to discourage their travel, which is itself a weak sanction.

What is evident, then, is the weakness of international law and the UN when it comes to the enforcement of international criminal law. Here, too, this weakness is selective. When the geopolitical will exists, as with Saddam Hussein or Slobodan Milosevic, the implementation of international legal standards will be self-righteously insisted upon. This reality of double standards is greatly discrediting to international law as a just and fair legal regime.

In terms of the recent editorial by Richard Goldstone, it should be remembered that Goldstone, although the chair of the mission, is only one of its four members. More significantly, after the notorious Goldstone editorial was published, the other three members of the fact-finding mission in a published joint statement reaffirmed the report in its entirety, and although Goldstone’s name was not mentioned, their intent was obvious. Without being invidious, it seems appropriate to note that Christine Chinkin, a distinguished professor of international law at the London School of Economics, was the most expert member of the group when it comes to international humanitarian law. So fairly considered, Goldstone’s retreat should not count for much, but unfortunately the retreat is being spun by the U.S. Government as a retraction that justifies demanding that the Human Rights Council repudiate the report retroactively.

It is unfortunate and ironic that it should be Judge Goldstone who steps forward to undermine the Goldstone Report. Of course, if there was some new truth that genuinely undermines the original conclusions and recommendations, then we should have been ready to applaud Goldstone’s courage and integrity to acknowledge a past mistake. But here, the grounds for reconsiderations are flimsy to the point of being non-existent, making the Goldstone position seem more like a belated plea for Zionist redemption. Sure enough, invitations to Israel have already been issued by Netanyahu cabinet ministers and praise bestowed by the right wing extremist Foreign Minister, Avigdor Lieberman.

Beyond this, Goldstone’s reconsiderations touch on a review of facts relating to some of the incidents, and rely unconvincingly on Israel’s self-investigations as providing a reliable basis for assessment. This flies in the face of almost all other accounts, which view these investigations as little more than self-serving public relations exercises. Goldstone wildly over-generalizes to conclude that he does not now ascribe intentionality to Israeli attacks on civilians and civilian targets in Gaza. Again, this seems completely untenable given the overall weight of testimony, including the damning confessional evidence of IDF soldiers contained in the publications of Breaking the Silence.

Of course, lawfare cuts both ways, and it is now Netanyahu who is calling upon the UN Human Rights Council to repudiate the Goldstone Report and indirectly lend support to the claim of the Israeli Minister of Defense, Ehud Barak, that the IDF is “the most moral army in the world.” Let’s hope that the UN holds its symbolic ground, and not only reaffirms confidence in the Goldstone Report, but feels a new stimulus to take seriously its recommendation for further action long overdue in the General Assembly and Security Council. And even if the UN fails to act responsibly, civil society has many options to show that even if governments and international institutions do not take issues of criminal accountability seriously, the peoples of the world do.

Part II, "Goldstone and Accountability" by Noura Erakat, can be found here.

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