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Upon Further Review .  .  .

Judge Goldstone withdraws his charge of Israeli war crimes.

Apr 18, 2011, Vol. 16, No. 30 • By PETER BERKOWITZ
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To find that a military has used disproportionate force, international humanitarian law, also known as the law of armed conflict, requires an analysis of the understandings and intentions of commanders and soldiers and a determination of whether their decisions and conduct were reasonable in the circumstances. The Goldstone Report contains no such analysis. True, Israel declined to cooperate, but it was under no legal obligation to do so. The Goldstone Report, moreover, was precluded from inferring criminal intent either from Israel’s decision not to cooperate or from the absence of information about Israeli understandings and intentions. Yet the Goldstone Report leapt to grim legal conclusions about the use of disproportionate force without such elementary information as the rules of engagement under which IDF commanders and soldiers operated against terrorists who relentlessly sought to blur the distinction—fundamental in the law of armed conflict—between civilians and combatants by unlawfully positioning themselves in densely populated areas and unlawfully fighting without uniforms. In short, the Goldstone Report’s legal finding that Israel sought to “terrorize a civilian population” was based on inadequate factual findings and so was inherently invalid.

Goldstone’s Reconsideration also withdraws—without making clear it is doing so—a scurrilous charge against the Israeli legal system. It cites approvingly the McGowan Davis report, which notes 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.’ ” 

In rightly crediting Israel’s investigations, however, Goldstone does not mention his report’s baseless finding that Israel’s system of civilian and military justice “does not comply with” the principles of international law (Part IV, par. 1612). The Goldstone Report reached this damning conclusion even though Israel’s procedures for investigating war crimes allegations compare favorably with, and in some important respects are more exacting than, those of the United States, Canada, the United Kingdom, and Australia.

Some distinguished Israelis, including Haaretz’s Aluf Benn and Hebrew University’s Shlomo Avineri, have argued that an important lesson to be learned from Goldstone’s reconsideration is that Israel ought to have cooperated with the Goldstone mission and should cooperate with similar international investigations in the future. Even if the investigators are biased, better for Israel to make its case and get it on record before official conclusions are published and ratified by the U.N.

That is the wrong lesson. Israel should not acquiesce to one set of rules and standards for itself and another for all other states. Under international humanitarian law, the obligation to investigate and prosecute war crimes falls in the first place on nations accused. Only when a country has shown itself to be unwilling or unable to discharge its obligation are international bodies authorized to pursue war crimes investigations. Israel, whose devotion to the law of armed conflict is something of which its soldiers and citizens can be proud, should not cooperate in the abrogation of its rights and responsibilities as a sovereign nation.

The Goldstone Report inflicted grave damage on Israel. But the Goldstone Reconsideration provides an excellent opportunity to reorient public discussion about international humanitarian law, not only for Israel but also for the United States, which, like its only liberal and democratic ally in the Middle East, is locked in a long war against transnational terrorists.

As Goldstone rightly observes at the end of his reconsideration, “the laws of armed conflict apply no less to nonstate actors such as Hamas than they do to national armies.” It’s high time to recognize that the chief threat to international law and order comes not, as so many Western intellectuals and international human rights lawyers are inclined to believe, from Israel and the United States, whose militaries devote untold and unprecedented hours to studying and enforcing the law of armed conflict, but from the terrorists, who utterly reject it.

Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution, Stanford University, where he chairs the Koret-Taube Task Force on National Security and Law.

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