Just a quick post to let you know that I’m back after a 6-7 month hiatus (with still a few posts here and there).

After spending these past months working in an entirely different domain than international law, I finally return with great pleasure to my passion, international law, this time based not in The Hague but in the other great international law capital of Europe, Geneva. I will be following closely the activity of the United Nations this time, and of the Human Rights Council in particular.

Give me a week or so to really get back into the game, but I assure you, I intend on getting The International Jurist back on track. It has truly been too long.

]]> http://www.theinternationaljurist.org/2011/09/05/im-back/feed/ 2 http://www.theinternationaljurist.org/2011/07/27/qaddafis-fate-under-discussion-the-international-communitys-responsibility-in-question/ http://www.theinternationaljurist.org/2011/07/27/qaddafis-fate-under-discussion-the-international-communitys-responsibility-in-question/#comments Wed, 27 Jul 2011 18:38:27 +0000 Xavier Rauscher http://www.theinternationaljurist.org/?p=1301 I had been meaning to write a series of posts on the travails of R2P and the situation in Libya a few months ago. Although I had announced that I would be writing on these issues, I regrettably never found the time to write anything publishable.

Time is as ever short as it has been for the past 4 months, but the discussion and debates surrounding the fate of Libyan leader Muammar Qaddafi are sufficiently challenging and telling of the difficulties of the Responsibility to Protect (R2P) doctrine and of international criminal justice that I feel like pitching in as well.

For those who missed it, about a week ago, French Foreign Minister Alain Juppé announced that Colonel Qaddafi could eventually stay in Libya if he relinquished power:

“One of the scenarios effectively envisaged is that he stays in Libya on one condition, which I repeat: that he very clearly steps aside from Libyan political life,” Mr. Juppé said on the French television channel LCI. “A cease-fire comes about by a formal and clear commitment by Qaddafi to give up his civil and military responsibilities.”

This surprising change of policy from one of the nations that most actively pushed in favor of UN Security Council Resolution 1970 (2011), which referred the situation in Libya to the International Criminal Court, was later confirmed by the United Kingdom’s Foreign Minister William Hague (see video here) and by the United States, as well as by certain rebel leaders.

There is no doubt that this new move was calculated to bring about a window of opportunity for political negotiations towards an end of the persistent stalemate that has characterized this civil war, and of Western military engagement, which has proven costly for already cash-strapped States.

But whether this move helps negotiations move forward or not – History will tell – it is a challenge and a blow to the International Criminal Court’s work and fragile legitimacy for it to be brushed away in the midst of a crisis by two countries that are among the Court’s strongest supporters among middle-powers: France and the United Kingdom.

The ICC quickly reacted to this change in policy by reaffirming that Qaddafi cannot be left in Libya by virtue of the arrest warrants which were quickly issued against the Libyan leader, his son Saif Al-Islam and the head of Libya’s Military Intelligence Abdullah Al-Senussi:

“The international criminal court has dismissed suggestions by Britain and France that Colonel Muammar Gaddafi could be allowed to remain inLibya as part of negotiated deal to remove him from power, insisting that a new government would be obliged to arrest the dictator under warrants issued by the court. (…)

But Olara said the decision to seek justice had been made in the UN, adding that the ICC’s arrest warrants were “legal facts” which “cannot go away”.

“Any negotiation or deal has to respect (UN Security Council resolution) 1970 and the ICC’s decision,” Olara said.

And so, predictably, the Libyan case becomes yet another intellectual battlefield for debates on the relationship between peace and justice, and the price of each compared with the other.

The law

As far as international law is concerned, the International Criminal Court is unquestionably right. The United Nations Security Council referred on 26 February 2011 the situation in Libya to the International Criminal Court by virtue of Article 13(b) of the Rome Statute. Once a situation is referred to the ICC, the Court acts entirely independently in carrying out investigations, delivering arrest warrants, and rendering justice, and States cannot simply make other arrangements that suit their political goals. What’s more, the State in question – in this case, Libya – has an obligation under the UN Charter to cooperate with the Court (paragraph 5 of Resolution 1970). Strictly legally speaking, there is no escaping such clear obligations.

The infeasibility of Article 16

As David Bosco notes however on his blog The Multilateralist, there is one legal path the UN Security Council could allow Qaddafi to remain in Libya: vote yearly UN Security Council Resolutions that defer any proceedings before the Court for the duration of one year each time, as Article 16 of the Rome Statute permits it:

“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

However, that is very unlikely to happen. As I have written before, Article 16 seems unpractical in all cases. It is difficult to imagine the Security Council voting year after year resolutions deferring the investigation of Muammar Qaddafi, Saif Al-Islam Qaddafi, and Al-Senussi, until their death to make sure they escape justice. The fact that it takes only one veto, or the lack of the required 9 out of 15 majority, to make the deferral fail, makes Article 16 even more precarious. Politically speaking, the UNSC would be shooting itself in the foot, de facto recognizing that it had moved too brashly in referring a situation to the ICC and that it is forced by political circumstances to go back on its word.

I seriously doubt we will ever see an Article 16 deferral. David Bosco is quite right to conclude that:

“as usual, the Council members want to have it all: they want to talk grandly about ending impunity but are much less sure about altering their policies to actually do so.”

The politics of Justice

I know nobody who understands better the politics of international justice than Mark Kersten, a current LSE PhD student and author of widely recognized blog Justice in Conflict, who wrote on this issue yesterday (emphasis is mine):

A number of Western states involved in the conflict, notably France and Britain, have begun to refine their “exit solution” for Col. Gaddafi, saying that while he cannot be allowed to retain power, he may be allowed to remain in Libya.

Meanwhile, these governments have declared that Gaddafi must be arrested and brought to the Hague – although, dubiously, never in the same statements regarding peace negotiations. They were at the vanguard of the UN Security Council’s resolution to refer the situation in Libya to the ICC. It bears asking whether the persuasion of states like the UK and France in support of the referral was the result of a desire to instrumentalize the Court in efforts to put pressure on and marginalize Gaddafi rather than because of any steadfast conviction of the need to bring Gaddafi to justice. Regardless, by simultaneously holding these two contradictory and apparently mutually exclusive positions, these governments undermine the pursuit of international criminal justice.

In a comment below Mark’s piece, Patrick Wegner raises the question as to whether the referral of the situation in Libya (as well as the situation in Darfur) was not, in fact, a “poisoned gift.” He writes:

I think there is an emerging pattern concerning the Security Council referrals of situations to the ICC. The UNSC refers a case when it really needs to be seen doing something and then disengages from the process, providing no further assistance to the ICC.

Both Mark and Patrick point to a larger and rather regrettable trend in the international community’s approach to international justice: the referral of a situation to an international tribunal (from the ICTY in 1993 to the ICC since 2005) in order to not have to intervene politically – and eventually militarily – in a delicate situation or conflict.

There is a series of rather crude attempts by the UNSC to delegate (or “outsource” to quote one of Mark’s past posts) their responsibility to maintain international peace and security to international judiciaries or to use the international criminal justice system put in place as a political pressure tool in negotiations. Libya seems to be the latest of these attempts.

Yet most of these attempts have failed: on one side, the international community was forced to intervene more often than not in situations it referred to international tribunals and courts (in the Balkans, for example, or more recently in Libya), and found a worse situation than had they assumed their responsibility right away, and on the other hand, international lawyers have always managed with persistence and patience to outmaneuver their political “masters” – or rather “creators” – and bring those responsible for atrocities to justice.

So what about Libya?

There is no denying that the situation in Libya is complex and that there is no easy answer to how to obtain peace and justice at the same time. We still lack the hindsight to fully appreciate the situation and establish the lessons to be learned for the future of international justice, especially considering that the conflict is ongoing. As popular wisdom suggests, “we know how wars start but not how they end.”

In all honesty, I am left a bit perplexed about the situation in Libya. I understand the States’ concern about how the conflict evolved: despite their military intervention, the war has been in a difficult stalemate for the past four months. Western States are in the midst of an economic crisis, giving them even less room to maneuver than usual, even assuming they are of good faith, and cannot sustain their military engagement in Libya. For a set of political reasons, they cannot increase further their involvement (for example, with ground troops) to bring a quicker end to the conflict.

On the other hand, I am a strong supporter of international criminal justice and believe that no crime should be left unpunished. I do not believe Qaddafi and his acolytes should be let go for matters of political expediency, and am frustrated by the Coalition’s constant improvisation that at times reeks of amateurism (I am also tired of hearing Bernard Henri-Levy talking continually on French radio, as if he was an authority in these matters, but I digress).

Questions to start asking

There are questions we can already start to raise, starting with the international community’s use of international judicial systems.

Resolution 1970 was voted largely with the hope that it would deter combatants, and particularly the Qaddafi regime, from committing more atrocities. The deterrence effect of the ICC is clearly still limited. Despite its efforts, the Court is still too “marginal” and insufficiently legitimate to “scare” certain individuals from committing mass atrocities. There is no cause for worry or despair: such things take time, and it is not abnormal for a new international criminal judicial system to take years before gaining such authority over State leaders who have benefited from immunity for far too long.

However, it is clear that the international community’s referral of situations to the ICC have not always been helpful to the Court. Certainly not because of the referrals themselves, but because of the lack of will by States to support these referrals with the necessary political muscle to the end, or by their rather crude attempts to manipulate the system to inflict political pressure, as if international justice was a mere bulldog to keep on a more or less short leash.

There are two fundamental dangers which the Court faces when it investigates situations with the life-span and dynamics such as the conflict in northern Uganda.

First, the Court will have incredible difficulties in contributing to peace in such contexts. For meaningful and lasting peace to be established and maintained, both the causes and the dynamics of conflict must be resolved. But by focusing on only a slither of the life-span of a conflict, the ICC acts to readjust how the international community understands, frames, and ultimately attempts to resolve the war. Roots causes and key moments when altered dynamics are ignored because they occurred prior to 2002.

The second, and more obvious, danger that the ICC faces is one of selectivity. By virtue of being bound to its temporal jurisdiction, in Uganda the Court could not investigate allegations of the gravest of crimes committed by the UPDF which occurred prior to 2002. As noted above, the people of northern Uganda see this as tilted and biased justice. It has been said many times that it is not sufficient for justice to be done; it must be seen to be done. If the Court is seen to be biased it hurts its own cause and mandate.

These are very interesting points, and I would be very interested in reading more about this problematic I had not encountered or thought of before. Two thoughts occur to me:

1. First of all, although the Ugandan case in terms of time-span is relatively rare, and that as Mark notes the temporal jurisdiction is not problematic in most situations, it could be difficult in certain (for now theoretical) cases to date precisely the beginning of a conflict and establish clearly whether it started prior or after the 2002 limit. The Ugandan situation is an obvious case in point (the conflict has effectively been ongoing), but other situations could very well be less clear, although it’s to be expected that as the Court’s existence lasts, the 2002 limit will become less and less of a problem.
2. More concretely, in the case of Uganda, as Uganda self-referred itself to the ICC and that this was one of the ICC’s first case (and the LRA being a notorious organization, it was quite a case), I find it difficult to imagine the ICC turning it down for the reasons Mark has raised. Impartiality is the biggest issue for an international court, or any court of law for that matter, who wishes to establish its credibility and legitimacy, and I understand Mark’s point on impartiality regarding Uganda. But refusing to intervene in an ongoing conflict in which crimes are being committed because the conflict preexists the Court’s existence seems to be an even worst solution than intervening.

All in all, it begs the question: is partial justice better or worst than no justice at all?

The question is complex on many levels and open to debate. As far as I’m concerned, I prefer partial justice, with the hope of setting precedents on which to build a more universal and impartial justice in the near future. But I could be dead wrong.

On another note, readers will no doubt have noticed that the blog has been very quiet for the past, oh, at least two months. I apologize for this, especially that it came without warning. I am currently working outside the field of international law (rest assured, this is only temporary), making it more difficult for me to blog on such issues on a regular basis and hopefully in an insightful manner.

Therefore, the blog will remain in hiatus for the summer until I can get back to it more seriously. I will be back though, without a doubt.

1. Introduction

Much has been said about Osama Ben Laden’s demise, and more precisely about the legality of the military action that lead to his death. I will admit to being rather pleasantly surprised by the volume and relative quality of the discussion that it entailed, and that it would be so heavily present even on mainstream media, not only in Europe but in the United States as well. I consider that as a relatively positive sign that people are asking questions about the legal frameworks and policies that are in place to counter global terrorism, even though I often disagree with the conclusions offered in a general atmosphere of American euphoria.

I will not add commentary to the legality of Ben Laden’s death. For one, much has been said, and I retained a few links I found to be particularly comprehensive which I will post below. Secondly, information is still unclear as to what happened, and it is impossible to offer a definitive assessment unless we have all the information at hand.

What I would like to focus on is not so much Osama Ben Laden’s death itself but what the debate it generated says about the state of international law regarding what are the legal policies available to States to counter terror, and what are the issues that still need to be addressed. Osama Ben Laden’s death, albeit being relatively “clean” in comparison to other American-led military operations, is emblematic of the difficulties we have in establishing clear and acceptable international legal policy against global terror. It effectively raises issues pertaining to all the demons of the recent struggle against terrorism: extrajudicial or “targeted” killings, the use of torture, the extent to which we can use military force against terrorist networks, not to mention some fundamental philosophical, moral and ethical questions on the meaning of the word “Justice.”

While covering each of these issues would probably require a book or two, I will concentrate on the bigger scheme of things on the competition between a law enforcement approach and a “war model” to counter-terrorism, and the need to adapt international law and find a new compromise between the security expectations of States on the one hand, and fundamental human rights and respect for human dignity on the other. It is urgent for the actors in the field of international law to clarify applicable rules in order for us to leave this persistent grey zone regarding applicable counterterrorism rules that sparks so much debate and controversy.

2. A Tale of Two Models: War on Terror versus Law Enforcement

Since September 11^th, 2001, two different approaches to counter-terrorism have been opposed and found themselves at the source of much discussion between lawyers and policy makers both on a domestic and international level: the “War Model” and the “Law Enforcement” approach. In a nutshell, the former considers the United States and its allies to be “at war” in the military sense against al-Qaeda and that victory will be achieved against terrorism through the use of military force and extraordinary war-time powers, whereas the latter, more classical, considers terrorism to be first and foremost a crime and should be countered through police work and criminal trials. In each case, different types of law applies – whether International Humanitarian Law (jus ad bellum and jus in bello) or domestic and human rights law.

Each doctrine has its partisans, its share of successes and its share of failures. The general trend – and allow me to insist here on the word trend – has been that the United States has favored a military approach, first of all by invading Afghanistan and later on carrying drone strikes in Pakistan, whereas Europeans tend to favor the law enforcement approach, seeking to prosecute terrorists and reinforce international cooperation. That is not to say, however, that the United States does not employ legal tools against terrorism and that Europeans do not engage in military action against terrorist groups – both do, but in different proportions. The reasons behind such different courses are several, not least of which the differences in political and military clout, available resources, and cultural and historical factors.

The continuous debate between these two doctrines, furthermore fueled by contradicting State practice, is only generating more confusion and vagueness of the law which is clearly showing in the current debate about the legality of Osama Ben Laden’s killing.

3. International Law versus State Practice: A Risky and Counter-productive Opposition

In a post reacting to a Der Spiegel article unequivocally critical of the United States’ killing of Ben Laden, Professor Kenneth Anderson of American University wrote “what we call international law has been fragmenting for some time now into different “communities of interpretation and authority” as I somewhere called it. (…) Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law.“

I do not share Ken Anderson’s pessimism, but the rift is undeniably there and needs to be mended.

Anderson goes on to write:

“It matters what the US government thinks, because if international law is to remain relevant to anything besides professors in Cologne, it cannot depart too far from the views of the great powers. (…) International law is grounded in the practice of states and the practice of some states matters more than others. (…) In the end the law is not set by NGOs or academics or international commissions, but states in their behavior and opinio juris.”

Although Anderson writes with the arrogance that American Conservatives have accustomed us to, he makes, regrettably, a point we cannot afford to neglect. It is important that the doctrinal debate on applicable international law does not lose touch with existing State Practice and more specifically States’ security concerns, lest international law becomes less relevant and hence loses its already relatively weak authority. While I am not arguing that international lawyers need to cave in systematically when confronted with a powerful State’s slightest whim, we must be always careful to address the security needs of States and offer credible and effective solutions to such issues. In the great scheme of things, international law should always be presented as a toolbox of solutions, not problems that may be negatively perceived not only by the States, but public opinion as well.

As things are today, in 2011, a strict law enforcement model and a set of high principles are not insufficient to satisfy the need of states’ and citizens’ for security. We need to be more audacious, and propose a new compromise between the War Model and Law Enforcement.

4. A Hybrid Approach to Counter a Hybrid Threat?

Perhaps the key difficulty in offering comprehensive legal policies against international terrorism is failing to grasp that terrorism is now a hybrid threat: it is criminal when it murders innocent bystanders in the streets of Baghdad, New York, London, Madrid and elsewhere, and it is military when it takes the form of paramilitary groups controlling territories from which it plans attacks and create safe havens, as is the case in the Sahel, Yemen, or parts of Afghanistan and Pakistan, as al-Qaeda and its offshoots have been known to do.

To counter a hybrid threat, do we need a hybrid approach?

An interesting reaction to OBL’s killing by Navy SEALs was University of Notre Dame’s Professor Mary Ellen O’Connell, well known for her vocal stance against extrajudicial killings and drone strikes in particular. In an Opinio Juris post, followed by an article published on the Foreign Policy Magazine website, Professor O’Connell makes the claim that although military means (in this case, Navy SEALs) were used, they applied law enforcement standards:

“The operation, far from a battle zone, followed law enforcement standards, including the attempt to capture and the likely use of assault rifles. As a firm believer in the role of our justice system in the fight against terrorism, I have long known the extraordinarily small chance of bin Ladin being found, captured, subdued, transported, and tried in a court of law. But it was America’s obligation to attempt this—something that could not be accomplished with drones.”

She concludes in the FP article:

“With the death of bin Laden, it is also time to end the “war” on terror-and return to police measures that sometimes involve the use of force.  It would be a dark irony if the methods that worked against Bin Laden were rejected for his lesser lieutenants.”

I do not agree with her assessment of the Ben Laden situation: I do not think law enforcement standards were applied, and remain skeptical of the legality of the entire operation (which hinges, no matter which model applies, on how much opportunity Osama Ben Laden had to surrender and the risk he posed to the soldiers and the civilians close to him – which still remains unclear) – but I find the idea of using military personnel in targeted counterterrorism operations applying law enforcement standards not unattractive, although major sovereignty issues will need to be addressed. In a way, I am thinking of a SWAT team writ large.

What we need is to think up a comprehensive counter-terrorism legal framework that would offer gradual rules of engagement for the different services confronted with terrorist networks: from strict law enforcement approach when dealing with domestic terrorism lato sensu to looser but human rights law-abiding rules for “capture” missions in an international setting to armed conflict-oriented rules of engagement when confronting paramilitary groups controlling or attempting to control territories. More generally, it has become essential that the laws of armed conflict take into account more comprehensively the important role non-State armed groups (NSAGs) play in today’s conflicts. The dichotomy between International Armed Conflicts that oppose States and Non-International Armed Conflicts (NIAC) that traditionally applied to internal or civil wars is no longer appropriate in the age of globalization in which NSAGs have the capacity to militarily oppose States. Such rules would also need to address what is acceptable regarding the detention of combatants in such conflicts.

The lack of a clear set of rules that can be said to apply in a conflict between a State and an international terrorist network on all levels – from the terrorists in the streets to the paramilitary groups that supports them – creates a grey zone in international law which in turn allows States to claim certain rights on an ad hoc basis, setting precedents they may yet come to regret.

5. Conclusion – Keeping in Mind the Reciprocity Factor

The debate following Osama Ben Laden’s death has made one thing clearer than ever before: the legal status quo is insufficient and therefore unacceptable and must be addressed head-on and without any taboos.

The reason for the urgency is something that people like Kenneth Anderson completely miss in their discourse: that international law, and the international system as a whole, is founded on a fundamental principle that is reciprocity. To claim the right to invade “rogue States” for murky security reasons, to indefinitely detain “enemy combatants” in a never-ending conflict, or to send drones to kill terrorist suspects all over the world is one thing when you are the United States and believe you are a force for good – but it’s a whole other thing when other States, with perhaps less honorable goals, build their own policies on such dangerous precedents to the disadvantage of international peace and security.

This is something that Rob Grace over at Law and Security Strategy very aptly seized upon:

“But one danger of violating international law is that others are likely to seize upon the incident as precedential.  As I argued in a Foreign Policy in Focus article last year, the United States has experienced this phenomenon before.  Putin referenced the “illegal but legitimate” Kosovo operation to justify Russia’s actions in Georgia in 2008.  Bulgaria, after it shot down a passenger jet in 1955, killing six U.S. nationals, evaded ICJ jurisdiction by claiming that the incident was domestic in nature, exactly the jurisdiction-evasion technique the United States reserved for itself in the 1946 Connally amendment.  In the wake of the bin Laden killing, Knesset member Shaul Mofaz has already taken the opportunity to call for the assassination of Hamas leaders.”

Clearly, rules need to be set, and they need to be set sooner rather than later.

Select links on the legality of Osama Ben Laden’s killing debate:

1. Was the Killing of Osama bin Laden Lawful? by Marko Milanovic
2. Law, Justice, Bin Laden by Rob Grace;
3. The Astonishing Defense of Ben Laden’s Death by the Security Council, by Dov Jacobs
4. The bin Laden Aftermath: Why Obama Chose SEALs, Not Drones, by Greg McNeal – great piece about why Operation Geronimo did not abide law enforcement standards
5. Bin Laden and International Law: Death or Trial? by Mark Kersten

Considering the amount of jubilation coming from the Israeli media and Israel supporters since last Friday on Richard Goldstone’s “retractions” (not that the word corresponds to reality), it’s good to see some rationality being published in the media in Israel, especially from someone as respected as Professor Avnieri. He writes from the start:

Even after Richard Goldstone retracted his statement that Israel deliberately targeted civilians in Gaza, the diplomatic and moral damage to Israel caused by the Goldstone report will not disappear, just as the Supreme Court’s acquittal of Israel Kastner back in the 1950s didn’t erase the terrible things said by Judge Benjamin Halevy in the district court ruling. (“He sold his soul to the devil.” ) That’s the power of metaphors as opposed to dry facts. As far as Israel is concerned, the lesson is simple: It shouldn’t boycott international forums, even if they are clearly biased against it.

And concludes aptly:

Israel made that mistake earlier when it didn’t appear before the International Court of Justice in The Hague regarding the security fence. Here too it left the arena to the Arab side. Former Supreme Court President Aharon Barak should have been sent to The Hague to present the Israeli Supreme Court’s balanced and responsible view, which recognized Israel’s right to proportionate self-defense. In light of these two failures we can only long for the days when Israel’s representative at the United Nations, Chaim Herzog, tore to shreds in the General Assembly the decision equating Zionism with racism. These are things that are etched in the international collective memory. There have been boycotts in the past against UN institutions, but by the Arabs. The Palestinians boycotted the UN Special Committee on Palestine that recommended to the General Assembly the partition of British Mandatory Palestine. Usually the side that boycotts is also the side that loses. We can hope that this lesson will be learned: The United Nations and its institutions are political rather than legal bodies, and we must not give up the political struggle.

I am not interested in engaging into the thorny political debate that characterizes the Israelo-Palestinian conflict, but thought this op-ed was a clear and well-reasoned reminder of the importance of international fora and of the respect for international law and institutions in world public opinion today. Whatever you may think of the imperfections of the United Nations or other international institutions, and there are without a doubt many, boycotting them is never the solution, as they are now an essential source of legitimacy in the eyes of many for any public action.

That is why the “delegitimization campaign” the Israeli government and its supporters like to denounce regularly is, if it exists at all, at least partly self-inflicted. By refusing to engage constructively with at least the moderates among its critics in international fora and elsewhere, Israel only isolates itself further. Had Israel appeared before the International Court of Justice in The Hague, which is by far the most respected and the most influential of all international courts, maybe the Wall Opinion would have been different. Had Israel cooperated with the Goldstone probe despite the fact that yes, the Human Rights Council is (was? I haven’t been following lately) notoriously biased against Israel, then the Goldstone report might have been different, and would have spared Israel, as well as a brilliant and honest international jurist, a lot of problems.

Again, “usually, the side that boycotts is also the side that loses.”

Judge Richard Goldstone

On April 1^st, 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 21^st century. And the sooner, the better.

I will do so in three parts:

• Part I on the question of the scope of UN Security Council Resolution 1973(2011) which authorized UN Member States to take military action to protect civilians in Libya;
• Part II on the difficulty of establishing a coherent R2P intervention doctrine, the most important challenge for supporters of R2P;
• and Part III on the role of the International Criminal Court and what is to come for Gaddafi and his lieutenants if the current regime does fall.

The idea here is to offer a synthesis of past discussions as well as more current and pressing debates. By mixing “old” and “new”, I hope to keep my posts interesting and complete.

I am already well on my way writing Part I. Stay tuned.

Mr. Bosco writes:

The operational incoherence of the doctrine isn’t the only problem: there’s also a moral gap. Put simply, shouldn’t the international community also care about the lives of combatants? An extended civil war fought in compliance with the laws of war will take hundreds and perhaps thousands of lives. War is tragic and awful not only when civilians are killed. World War I was an epochal moment in the world’s moral approach to war not because civilians were massacred on a large-scale, but because soldiers were.

Reading the Security Council resolutions and listening to Western political leaders, one has the impression that the moral questions here begin and end with the treatment of civilians. Those carrying arms are placed in a separate moral universe. (…)

The notion of civilian protection has become so dominant as a discourse that it is not only threatening the effectiveness of the ongoing intervention, it is also–and quite perversely–shrinking our moral horizons.

David Bosco is clearly positioning himself on moral/political grounds when discussing this: namely, that politicians and diplomats focus so much on the protection of civilians that they lose perspective on the value of the lives of the men and women they send in harm’s way to achieve their goals. It’s a complex moral issue to which I am not sure I can contribute much value. As someone who has never served, I would feel most uncomfortable discussing the “expandability” of soldiers, and to what extent it is moral to sacrifice the lives of soldiers to protect civilian’s.

But as an international lawyer with a focus on the laws of armed conflict, which includes both jus ad bellum and jus in bello, there is some food for thought in David Bosco’s post about the notion of morality and concern for combatants in international law. How does relevant laws apprehend moral issues with regards to soldiers, and not just civilians, at the heart of the most “immoral” situation known to mankind that is war?

To be clear, International Humanitarian Law (IHL) – often used as a synonym of the jus in bello branch of the laws of armed conflict – does take into consideration moral issues pertaining to combatants, even though not always without difficulty. A Rousseau-esque conception of warfare imbues all the IHL treaties – that is to say, the idea that war “isn’t personal” and is a matter between States, not Men. In other words, a combatant is shooting and killing another combatant, a “uniform,” and not another man (or woman). Once a combatant is hors-de-combat, human dignity is fully restored – and that means immunity and Prisoner of War (POW) status. The legal issue of combatant immunity and to what extent it applies, as well as the more generally Rousseau-esque conception of war, have come under question as inter-State wars are more and more rare and that we often become involved in conflicts with non-State armed groups, but remains a central pillar of IHL – as it should.

To cite a less clear-cut example, there is the principle of proportionality which is arguably the most morally challenging aspect of IHL and the most difficult to apply on the field for a military commander. The principle of proportionality commands that an attack that risks causing collateral damage on civilian targets (including death) may only be carried out within the limits of proportionality in relation to the anticipated military advantage it intends to obtain. Reversibly, and more clearly, an attack is disproportional and a crime is committed when it is “launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage” (see page 5 of this ICC Office of the Prosecutor document regarding its preliminary examination of the situation in Iraq – PDF document).

Concretely, an obvious example is that it is a war crime to cause serious damage to a civilian hospital just to destroy a small guard post. Or, for that matter, to destroy entire civilian areas just to kill insurgents hiding among the population there. That being said, the proportionality principle is not often so clear-cut: how realistically can we expect a military commander to knowingly sacrifice the lives of some of his soldiers – and part of a military commander’s responsibility is to preserve their lives as well – in an attempt to preserve civilian lives in the conduct of a military operation? This dilemma is even more recurrent that current conflicts are often thought against insurgents with little respect themselves for the laws of war and who readily hide among civilians, effectively using them as human shields. Proportionality is – coupled as it must be with the principle of distinction between combatants and non-combatants – one of most burning legal issues facing military forces in the beginning of the 21st century.

David Bosco is not necessarily wrong to mention the issue of concern for soldiers’ lives, although I’m not sure if there are any answers to the questions he raises. The laws of armed conflict, and jus in bello in particular, also wrestle with these moral issues. And as the nature of the armed conflicts evolve with the sharp rise in the involvement of non-State actors who show little regard for the applicable laws, the moral issues are bound to become even more difficult to address.

But one thing is certain: international humanitarian law does not ignore the issues, and attempts to apprehend them, as it should continue to despite the growing difficulty. Because what IHL has in common with its peacetime cousin Human Rights law, if anything, is the central notion of human dignity, and we should never lose sight of that.

I want to take the opportunity to thank Laure Fissore for drawing this for me. Ms. Fissore is a young uprising artist from Monaco who I have the chance to know personally and who was kind enough to accept to draw her interpretation of the Knotted Gun at my request for the blog and this on very short notice. I’m a big fan of her work, and she has yet to disappoint. This was exactly what I was looking for: something sober, preferably in neutral colors, well-drawn, and representative.

You can find Laure Fissore’s website here. You’ve just missed her work exposed at the Fnac Montparnasse in Paris, but some of her work in Armenia is still exposed along with others’ at the Musée de la Poste (still in Paris) until the 23rd of April.

I have much catching up to do before I can start writing again – I intend to prepare a rather longish post on R2P and Libya – although expect a series of post, long and short, to come up this week.

In random but nevertheless important news, fellow international law blogger and frequent The International Jurist commenter Dov Jacobs from Spreading the Jam has joined Twitter recently. You can follow him at @dovjacobs, and I strongly suggest you do, as well as @MarkKersten. And just for good measure, follow the blog’s Twitter account @intljurist and my personal @xrauscher_.

If you’re into international law and are not on Twitter, please do join us. There aren’t enough international lawyers online, and it’s quite a shame. Twitter is the best way to discuss and share insights on international law, 140 characters at a time. Oh, you’d be surprised what can be said and done in 140 characters…

On that matter, I have assembled a list of the best/most active international law and justice Twitters. Just for reference.

Thank you for your patience, and see you soon, whether on Twitter or here.