Review Roundtable Part I: Goldstone and International Law

Review Roundtable Part I: Goldstone and International Law

Review Roundtable Part I: Goldstone and International Law

By : Richard Falk

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.

Review Roundtable Part II: Goldstone and Accountability

On December 27, 2008, Israel began aerial strikes on the Gaza Strip, home to 1.5 million Palestinians, three-quarters of whom are refugees, who could not, because of Gaza’s sealed borders, become refugees of war. Within a week, amidst the rubble of hospitals, mosques, government ministries, factories, and schools, Israel initiated a ground offensive that no more distinguished between civilians and combatants than did its “smart” bombs. On the fourteenth day of the offensive, in the run up to a buoyant inauguration for the United States’ first African-American President, the House of Representatives passed Resolution 34 “[r]ecognizing Israel`s right to defend itself against attacks from Gaza, reaffirming the United States` strong support for Israel, and supporting the Israeli-Palestinian peace process.” And so the offensive continued. By its close on January 18, 2009, nearly 1,400 Palestinians had been killed, no less than 400 of them children.

Israeli officials glowed in the success of Operation Cast Lead. Unlike their thirty-four-day attack on Lebanon that resulted in death of 120 Israeli soldiers, a resilient Hezbollah movement, and the ire of Israeli society, in Gaza, only nine Israeli soldiers were killed, four of them by friendly fire, and a pummeled Gaza left Israel’s western front eerily calm. The military strategy to “shoot at anything that looks suspicious” had proven successful — or so thought the State.

In April 2009, the UN Human Rights Council, an inter-governmental body comprised of forty-seven member states and distinct from the treaty-making bodies that oversee compliance with particular Conventions, established a fact-finding Mission to investigate alleged war crimes committed by Israel during its offensive. Israel rejected the Mission’s mandate, accusing it of bias for only investigating Israeli and not Hamas war crimes. However, even after Justice Richard Goldstone, the head of Mission, insisted on expanding the mandate to include alleged crimes committed by Hamas as well, Israel’s protests did not abate.

In light of Israel’s broader battle against the existing legal order, which regulates the methods and means of warfare and the application of the laws of occupation, Israel’s obstinate rejection makes perfect sense. The largest nuclear power in the Middle East has never signed nor ratified the Additional Protocols (1977) to the Geneva Conventions that extend the laws of war to armed conflicts involving non-state actors. Israel’s flagrant violations of said Amendments, ratified by 163 states, are deliberate attempts to challenge the laws of armed conflict, which Israel believes are not mature enough to handle its security concerns. Consider the statement made by the former head of the International Law Division of the Israeli Military Advocate General:

If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries…international law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into legal moulds. Eight years later it is at the center of the bounds of legitimacy.

The Human Rights Council’s establishment of a fact-finding mission is therefore a direct confrontation to Israel’s systematic challenge to the legal order. Accordingly, Israel has made the Mission, the Council, the Report, Justice Goldstone, and his counterparts — as opposed to the substance of the final Report itself — the site of conflict. Israel seeks to so malign the process in order to establish that only it can fairly judge itself. The Goldstone Report has withstood these challenges, including the most recent one presented by Justice Goldstone himself. Although none of its substantive recommendations have been applied, especially its most significant recommendation that the matter be referred to the International Criminal Court for a judicial investigation, the Report’s enduring relevance alone has become a measure of accountability. 

The Goldstone Report at the UN: Trans-Atlantic Ping-Pong

After its initial release in September 2009, Israel together with the US, have made several attempts to bury the Goldstone Report. Their attempts have mirrored more successful efforts in the late 1990s, when the US shelved a UN investigation of Israel’s 1996 bombing of a UNIFIL compound in Qana, commissioned by then Secretary-General Boutros Boutros Ghali. In 2002, Israel rebuffed attempts by Secretary-General Kofi Annan to investigate the April 2002 raid on Jenin refugee camp by initially agreeing to cooperate fully with the investigation and then, after a significant lapse of time, rescinding its commitment, forcing Annan to disband the mission.

Chronology of Survival: The Goldstone Report between October 2009 and April 2011

October 1, 2009: Attempts to bury the report began by targeting the PLO, chaired by Mahmoud Abbas, and coercing it to rescind the Report from the Geneva-based Human Rights Council in October 2009. Overwhelmed by an indignant response from Palestinian civil society the world over, the PLO resubmitted the Report for consideration by the Council, where it received twenty-five endorsements.

November 5, 2009: A month later, in November 2009, the New York-based General Assembly endorsed the Report by a vote of 114-18 with 44 abstentions.

December 3, 2009: Accordingly, Secretary General Ban-Ki Moon requested that Israel and Palestinian parties investigate the alleged war crimes against them.

April 14, 2010: The Report was thereafter returned to Geneva, where the Human Rights Council passed a resolution to establish the Independent Committee of Experts to assess the adequacy of the domestic investigations.

September 23, 2010: The Independent Committee of Experts reviewed the domestic investigations of all parties and found that none are sufficient. Israel and Palestinian parties are given six more months to correct the shortcomings of their investigations.

March 21, 2011: The Human Rights Council held an interactive dialogue with the Independent Committee of Experts, which determined that notwithstanding the investigatory extension, the investigations are still lacking. The Human Rights Council thereafter voted to move the Goldstone Report out of Geneva and back to the General Assembly in New York for actionable follow-up, namely referral to the Security Council for referral to the ICC, by a vote of 27-3, with sixteen abstentions.

April 1, 2011: Justice Richard Goldstone published an editorial in the Washington Post suggesting that the Report would have been a different document had he known during the investigation what he knew now, causing renewed controversy over the Report.

April 14, 2011: In a bi-partisan led effort, the US Senate passed a resolution that “calls on the United Nations Human Rights Council members to reflect the author’s repudiation of the Goldstone report’s central findings, rescind the report, and reconsider further Council actions with respect to the report’s findings.”

After nearly two years of painstaking advocacy by the human rights community, especially Palestinian human rights organizations, and at the very moment when the Human Rights Council returned the Goldstone Report to the General Assebly in New York where the UN Security Council could refer it to the International Criminal Court, Justice Goldstone’s editorial provided another last-ditch opportunity for the US and Israel to bury the Report. Considering that the Human Rights Council, as well as the Mission’s other members, have affirmed their support for it, the Goldstone Report will mostly likely survive these attempts, but will emerge enfeebled and bruised. Regardless of its condition, the Report would not have survived the next ring of fire in the hands of the politicized Security Council, where the US can exercise its veto power.

Even if Justice Goldstone had not published his provocative editorial, the Security Council would in all likelihood have failed to exercise its Chapter VII authority and refer the Report to the ICC. Short of such a referral, several other means of accountability are available within the UN, including the convening of a conference for the High Contracting Parties to the Geneva Conventions by its depository state, Switzerland. However, according to Swiss and Palestinian diplomatic representatives, the US and several of its European allies have put a tremendous amount of pressure on Switzerland to refrain from doing so. For a more thorough discussion on these options, see BADIL`s Roadmap to Accountability. It would seem that with or without the Goldstone Report, US and Israeli checkpoints have policed all roads to legal accountability.

Extra-Legal Methods of Accountability: Taking It to the Streets

Aware of these insurmountable hurdles, international civil society has not held its breath, and in fact has been waging a battle for accountability outside of multilateral and governmental fora since Israel’s offensive began in December 2008. First in the form of mass street protests calling for a cease fire, then, since the end of the operation, in the form of boycott, divestment, and sanctions, civil disobedience, and the exercise of universal jurisdiction across Europe, civil society has worked to challenge Israel’s affront to the international legal order.

Whereas states, especially those High Contracting Parties to the Geneva Conventions, are in a much better position to hold Israel to account, civil society has acted with much more clarity about the proper scope of the laws of war. Accordingly, advocates from the UK and Spain have issued arrest warrants for alleged Israeli war criminals forcing said individuals to restrict their own travel. According to the Boycott National Committee, BDS activity spiked after the Gaza offensive and redoubled since Israel’s fatal attack on the Mavi Marmara because “Cast Lead marked a turning point in public opinion reminiscent of the international reaction to the 1960 Sharpeville massacre in apartheid South Africa.”

Civil society BDS and legal efforts have borne considerable fruit, as is evidenced by the newly ascribed monikers of “lawfare,” to describe efforts to prosecute Israeli officials for war crimes in third party jurisdictions, and “de-legitimization,” to describe the rising relevance and efficacy of BDS campaigns. Israeli Ambassador Michael Oren has described BDS as one of the most serious threats facing Israel today and Zionist organizations have invested no less than $6 million USD to counter the decentralized and predominantly volunteer-campaign in the US.

The Goldstone Report has been a monumental tool in the battle for accountability for breaking with the UN’s historical failure to produce an investigation that can withstand political assault. Still, the Report never had the potential to deliver on its promises of justice and accountability absent significant political will among states. As evidenced by its beleaguered journey through the UN and its stymied potential by the US and Israel, such political will is sorely lacking. The same cannot be said for grassroots activists globally who, with few resources, have caused Israel and her hawkish advocates to take serious pause. Similar to the International Court of Justice’s Advisory Opinion on the Separation Wall, the Goldstone Report may help their cause, but ultimately, Israel’s gruesome follies are providing the momentum and inspiration for this people power movement.    


Part III, "Goldstone in Political Context" by Mouin Rabbani, can be found here.