Academic journal article Policy Review

The Goldstone Report and International Law

Academic journal article Policy Review

The Goldstone Report and International Law

Article excerpt

THE CONTROVERSY OVER the "Report of the United Nations Fact Finding Mission on the Gaza Conflict" (1) (September 15, 2009), more commonly known as the Goldstone Report, seems to have died down. But its larger significance has yet to be 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 on December 27, 2008, and concluded on January 18, 2009. 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.

Notwithstanding a veneer of equal interest in the unlawful conduct of both Israel and the Palestinians, the Goldstone Report--informally named after the head of the UN Mission, Richard Goldstone, former judge of the Constitutional Court of South Africa and former prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda--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 rocket and mortar fire 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, and which Hamas had intensified after its bloody takeover of Gaza from the Palestinian Authority in 2007. While the Goldstone Report indicated that here and there Palestinian armed groups may have committed war crimes, 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 purported to find solid evidence that Israel had committed crimes against humanity--among the gravest breaches of international law--by implementing a deliberate policy of terrorizing Palestinian civilians, both by targeting civilian noncombatants and destroying civilian infrastructure.

Israel has provided three major responses to the Goldstone Report. The most recent came from the Intelligence and Terrorism Information Center (ITIC), an Israeli NGO that works closely with the Israel Defense Forces (IDF). In March 2010, the ITIC 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." (2) 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" (3) (July 29, 2009), and "Gaza Operation Investigations: An Update" (4) (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. …

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