Yet Another Critique Of The Goldstone Report--How The UN And Goldstone Ignored International Law

True, Goldstone and his friends will continue to ignore the criticisms of the Goldstone Report, just as they have claim that such criticisms do not even exist.

But they do.

In The Goldstone Report and International Law, Peter Berkowitz, Senior Fellow at the Hoover Institution, Stanford University, writes that aside from the bias of the Goldstone Report, the emphasis of the criticisms of the report have focused on the mistakes in both the factual and legal findings of the report--

But another and more far-reaching issue, which should be of great significance 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. Among the most serious political consequences of this shift is the impairment of the ability of liberal democracies to deal lawfully and effectively with the complex and multifarious threats presented by transnational terrorists.

Factual Errors In The Goldstone Report

Berkowitz notes that in Israel's updated response in January, factual errors in the Goldstone Report were exposed, among them:

• The Goldstone Report found that, in the absence of legitimate military objectives, Israel intentionally destroyed the Namar water-wells complex — including pumping machines, pipes, and civil-administration buildings — by air strikes to deprive Gaza’s civilian population of clean drinking water. Israel’s update, however, furnished photographic evidence demonstrating that the Namar water wells were located inside the walls of a Hamas military compound.
  
  
• The Goldstone Report found that Israel undertook a “deliberate and premeditated strike” to damage a vacated Gaza wastewater-treatment plant in the al-Sheikh Ejlin neighborhood to cause raw sewage to flow into and destroy farmland. Israel’s update, however, reported that the damage to the plant did not stem from a deliberate idf attack. The idf may have damaged the plant inadvertently during a battle with Hamas fighters, or Hamas fighters themselves may have attacked the plant to set loose sewage to hamper the movements of Israeli tanks operating in the area. But “there was no physical evidence or eyewitness testimony to support the conclusion of the Human Rights Council Fact-Finding Report.”
  
  
• The Goldstone Report found that Israel conducted an aerial strike on the el-Bader flour mill to deny Gaza’s civilian population the means of providing for their own sustenance and to render them more dependent on Israel. Israel’s update, however, pointed out that the Goldstone Report contains no evidence that the flour mill was struck from the air, that “photographs of the mill following the incident do not show structural damage consistent with an air attack,” and that the available evidence indicates the flour mill was struck by tank shells during combat operations.
  
  
• The Goldstone Report found that Israel destroyed the Abu-Askar family home despite its “unmistakably civilian nature.” Israel’s update, however, maintained that “due to its use as a large storage facility for weapons and ammunition, including Grad missiles, the house of Muhammad Abu-Askar was a legitimate military target.” It also emphasizes that because the idf issued warnings to the family to evacuate and delayed the attack until the night, when fewer civilians were present, no civilian casualties ensued.

And as Berkowitz points out--if the fact-finding is faulty, then the legal findings which are based upon them are questionable as well.

The Goldstone Report--and UN Human Rights Council--Overstepped Their Authority

Progressing to the legal foundations of the Goldstone Report, Berkowitz points out that the UN Human Rights Council, as a subsidiary of the UN General Assembly, overstepped its authority in establishing the Goldstone Committee.

According to Article 24 of the UN Charter the Security Council has “primary responsibility for the maintenance of international peace and security.”

On the other hand, the role of the General Assembly is limited to issues of international peace and security. According to Article 10

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.

Here is the exception to the authority of the General Assembly as outlined by Article 12:

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.

The point is that the Security Council never asked the General Assembly for its recommendations--so when both the General Assembly and the UN Human Rights Council endorsed the recommendations of the Goldstone Report, they contravened Article 12 of the UN Charter. Likewise, recommendations and resolutions that came out of the UNHRC during the conflict were all made without authority.

In fact, the recommendations of the Goldstone Report itself contravene Article 12 as well--a problem that Goldstone himself saw and attempted to sidestep:

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.

The question of the legality of the conduct of the operation is inexorably tied with the factors that went into the decision to execute the operation in the first place.

On the other hand, there is the claim that Article 12 is no longer observed and that this would not be the first time that the GA has given recommendations that it was not technically authorized to make:

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.”

In response, Berkowitz notes that even if the ICJ argument had merit, the fact is that the Goldstone Report explicitly went beyond the "humanitarian, social and economic aspects" because its mandate directed it to go beyond violations human rights to include violations of international humanitarian law--ie the international law of armed conflict.

Goldstone Report Interfered With Israel's Jurisdiction

A second principle of international law that the Goldstone Report contravened was the principal of deference, which assigns to countries the responsibility to carry out themselves the investigations into allegations of war crimes, as well as to prosecute and punish where required. This is clearly stated in Article 2 of the UN Charter:

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.

Even granting that this is not an unconditional blank check, the states are initially assumed to be competent to carry on such investigations.

In the case of Operation Cast Lead, the UNHRC failed to apply deference--going so far as to prematurely calling for an independent investigation of Israel while the conflict was still going on.

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 [of the Fourth Geneva Convention as applies to deference] 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?

Goldstone Report Misunderstands The Role of the International Criminal Court

Going a step further, the Goldstone errs in the role of the International Criminal Court by recommending that Israel be referred to that court in the event that it does not apply the report's demands. According to Berkowitz, the kinds of cases reserved for the ICC are "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."

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 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 [ICC prosecutor Luis Moreno-] 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.

Thus when he was sworn in on June 16, 2003, Ocampo said:

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.

...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.

The real world exceptions to this principle of deference were the ad hoc tribunals for the former countries of Yugoslavia and Rwanda during the 1990s. The internal conflict and civic breakdown made external tribunals necessary. The International Criminal Tribunal for the former Yugoslavia and Rwanda were necessary because the civil war and massive killing either overwhelmed the national governments or were evidence that the governments were unwilling to conduct the required prosecutions--unlike Israel's whose judicial system.

What Should Have Been Done

Berkowitz notes that by the same token, this does not mean that international bodies had to wait patienty until Israel was completely finished with its investigation and prosecutions.

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.

If only the UN--and Goldstone--had shown such respect and deference for a country's rights.

The article concludes with the thought that many of those who support the Goldstone Report are motivated by an idealized view of international law.

Be that as it may, can the errors of the Goldstone Report be addressed--and can similar mistakes be prevented in the future?

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