- Judge Richard Goldstone
On April 1st, 2011, Judge Richard Goldstone, an eminent international jurist who was the former Chief Prosecutor for the ICTY and ICTR and the head of the UN fact-finding mission on the 2009 Gaza conflict, published an op-ed piece in the Washington Post in which he “reconsiders” in hindsight some of the conclusions of the mission’s report (PDF file), which he authored. The 575-page document, infamously known as the “Goldstone Report,” had made something of a splash when published as it was considered by supporters of Israel to be excessively critical of Israel Defense Forces (IDF) also known as Tsahal, and this despite the fact that the report also target Hamas’ conduct during the hostilities. Israeli Prime Minister Binyamin Netanyahu famously compared in gravity what he called the “Goldstone threat” – a “codeword for an attempt to delegitimize Israel’s right to self-defense” – to the “Iranian threat” against Israel.
Nevertheless, Richard Goldstone’s op-ed is interesting and, we presume, a show of responsibility and integrity. Judge Goldstone writes:
“We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.
The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found 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.”
Unsurprisingly, the Israeli government, as well as unconditional supporters of Israel and critics of the Goldstone report are rejoicing and taking advantage of such admissions. Prime Minister Binyamin Netanyahou has called for the report to be “tossed into history’s trash can”. “Jewish” groups (as a Frenchman, I am always uncomfortable with such labels) have demanded repair damages from Goldstone. In a post over at The Volokh Conspiracy, David Bernstein attempts to twist this story (citing NGO Monitor on the way – bad idea) by implying that Richard Goldstone was from the beginning of bad faith and is still today by attempting to blame Israel for his erroneous conclusions.
But there is a lot more to Goldstone’s op-ed than just retractions.
It is important to note first of all that Israel refused to cooperate in any way with the fact-finding mission despite assurances of impartiality by Richard Goldstone (in that regard, the exchange of letters between Goldstone and the Israeli permanent representative to the United Nations Aharon Leshno Yaar published as Annex II of the Report – p. 558 and following – is quite telling). I remain convinced that it was a bad idea by Israel not to work with the UN fact-finding mission, no matter how biased it considered the mission’s parent organ, the Human Rights Council, to be (and in all honesty, it is). Israel did not help anyone, let alone itself, by giving the world the appearance of wanting to hide something, and Richard Goldstone is right to point that out still today:
“As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.”
And of course, it is hard for any panel, even the most balanced one (and perhaps particularly the most balanced one), to produce a impartial report with one side of the story completely missing.
Controversies aside, Judge Goldstone raises some interesting points in his op-ed regarding Hamas. A lot was said about the way the report “targeted Israel,” but anyone who actually bothered reading it, or at least skimming it, knows that the report did not let Hamas go without considerable criticism – far from it. Judge Goldstone recalls these criticisms, and adds to them the fact that Hamas has made no attempt whatsoever to investigate war crimes that its members allegedly committed, not least of which firing rockets on civilian-populated areas without any form whatsoever of military targets.
His conclusion particularly retained my attention (emphasis is mine):
I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. (…)
Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.
That is the major challenge for the laws of armed conflict is to find ways to make it enforceable on non-State armed groups. Currently, international humanitarian law sources, not least of which the Geneva Conventions and their Additional Protocols, apply only to States with the notable exception of Common Article 3. There has been progress with the Rome Statute, which by exercising jurisdiction over individuals and not States, allows for the enforcement of these rules on non-State armed groups. However, there is a lot still to be done: how do we enforce it universally? how do we treat illegal combatants who massively violate international humanitarian law? should we consider non-State actors as subjects of international law?
These are a few of the questions that need effective and well-constructed answers in this beginning of the 21st century. And the sooner, the better.
3 Comments
Xavier, I’m a bit puzzled by your last paragraph because I find it a little misleading on the actual state of the law of armed conflict in relation to non-state actors. For example, when you say that: “There has been progress with the Rome Statute, which by exercising jurisdiction over individuals and not States, allows for the enforcement of these rules on non-State armed groups”. Isn’t that true by definition of all international criminal tribunals since Nuremberg, which prosecute individuals, not States? Moreover, the whole law of non-international armed conflicts implies that one of the parties is a non-State actor, so IHL does in fact apply to members of such groups. And they are in fact theoretically accountable for massive violations of humanitarian law.
As for the accountability of the groups themselves, rather than their members, ICL will never be the answer, because it applies to individuals. Except if you follow the option I defend in my article on aggression (available on SSRN), to bring back to life the possibility of declaring an organisation as criminal, as was an option at Nuremberg.
Alternatively, the option you mention to consider non-state actors as subjects of international law is interesting. Especially as these groups are recognised some limited treaty-making powers under general international law. The question would be of the relevant forum for prosecution though.
Hi Dov.
On your first point, yes, that is true since Nuremberg. But the ICC is the first permanent and non-ad hoc international criminal tribunal, and in that sense is an improvement.
IHL does apply to non-State armed groups in NIACs, but the sources are rather limited. Unless I am mistaken, the only provision for such situations is Common Article 3 of the Geneva Conventions, which I mention, as well as perhaps a few provisions in AP I. Feel free to correct me if I’m wrong.
Lastly, you’re right: ICL only applies to individuals, not groups as such, and it’s a pity. But the improvement is that prior to the emergence of ICL in the 1990s, with the exception of the Nuremberg tribunal, there was a “State” veil between international law and perpetrators of mass atrocities. That’s what I meant.
I like your idea of declaring an organisation as criminal. I’ll look it up on SSRN as soon as I have time, and will let you know about what I think once I do.
Hi Xavier,
about the IHL rules applying to NIACs, without being a specialist, I’d say that there is a increasing number of rules that are recognised under customary international law.
I know that it’s always delicate to actually know what’s in customary law (except for the ICRC, which consider that everything is customary law…), but even a conservative approach would allow to consider that a lot of the war crimes in NIACs under the Rome Statute are now customary law, which is quite a substantial body of law, and which should at least be a reason to qualify slightly your pessimism.
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