The Goldstone Report: Politicization of the Law of Armed Conflict and Those Left Behind

Author:Joshua L. Kessler
Position:Judge Advocate, U.S. Army
Pages:69-121
 
FREE EXCERPT
2011] POLITICIZATION OF LAW OF ARMED CONFLICT 69
THE GOLDSTONE REPORT: POLITICIZATION OF THE
LAW OF ARMED CONFLICT AND THOSE LEFT BEHIND
MAJOR JOSHUA L. KESSLER
I don't think any country would find it acceptable to have
missiles raining down on the heads of their citizens. The
first job of any nation-state is to protect its citizens. And
so I can assure you that if . . . somebody was sending
rockets into my house, where my two daughters sleep at
night, I'm going to do everything in my power to stop
that. And I would expect Israelis to do the same thing.1
I. Introduction
Fractured streets lined with the debris of shattered buildings. Families
rummaging through the bits and pieces of the remnants of their broken
homes, searching for anything they can salvage from the piles of crushed
cement and rebar. Women and children, walking behind donkey carts,
horses, and battered pick-up trucks on their way to a safer place.2
These images are an all too familiar sight on the international twenty-
four hour news cycle. Civilians caught in the crossfire of a deadly
struggle between their governments and fundamentalist insurgent groups
employing terror tactics. The images are too common in modern
Judge Advocate, U.S. Army. Presently assigned as Chief, Defense Support to Civil
Authorities Section, Office of the Staff Judge Advocate, U.S. Army North (5th Army),
Fort Sam Houston, Texas. LL.M., 2011, The Judge Advocate General’s Legal Center
and School, Charlottesville, Virginia; J.D., 2002, University of Pittsburgh; B.A., 1999,
American University, Washington D.C. Previous assignments include Brigade Judge
Advocate and Trial Counsel, 8th Military Police Brigade, Schofield Barracks, Hawaii,
2007–2010; Chief, Administrative Law, U.S. Army Criminal Investigation Division, Fort
Belvoir, Virginia, 2005–2007; U.S. Army Infantry Center and Fort Benning, Georgia
(Trial Counsel, 2004–2005; Admin. Law Attorney, 2004, Legal Assistance Attorney,
2003). Member of the bars of the Commonwealth of Pennsylvania, the Court of Appeals
for the Armed Forces, and the Supreme Court of the United States. This article was
submitted in partial completion of the Master of Laws requirements of the 59th Judge
Advocate Officer Graduate Course.
1 Senator Barack Obama, Speech in Sderot, Israel (Jul. 23, 2008), available at http://
www.nytimes.com/ 2008/07/23/us/politics/23text-obama.html.
2 See Videotape: An Uneasy Calm in Gaza (New York Times 2009), http://www.nytimes.
com/2009/01/20/ world/middleeast/20gaza.html?pagewanted=2&_r=1&ref=gaza_strip
(last visited Nov. 24, 2010).
70 MILITARY LAW REVIEW [Vol. 209
asymmetric warfare; whether it is an Afghan refugee cradling her
recently deceased child, or a New York City firefighter rummaging
through the wreckage of a fallen skyscraper. In this case, the images
described above relate to the most recent conflict in the Palestinian
Territories3 (“Territories”), known to the Israeli Defense Forces (“IDF”)
as Operation Cast Lead.
In the wake of repeated failed attempts at diplomacy, with lasting
political peace a seemingly unattainable goal, civilians on both sides of
the Israel-Palestine conflict are suffering. Since 2001, armed groups
within the Gaza Strip (hereinafter Gaza) have fired thousands of rockets
into Israel, conducted suicide bombings, and staged vehicular assaults,
killing nearly 1,200 Israeli residents and wounding nearly 10,000 more.4
Indiscriminate rocket attacks are the daily reality of over 950,000 Israelis
currently living within the range of mortar, Qassam rocket, and M-21OF
(a.k.a., “Grad”) rocket attacks fired from Gaza.5 Many civilians have
only fifteen seconds to find a safe place to take cover following warnings
of an impending attack.6 Daily life for Gaza’s Israeli neighbors is
inundated “with frequent sirens, crowded shelters, frightened children,
considerable danger, trauma and stress.”7
In 2007, the living conditions for civilians in both southern Israel and
Gaza took a dramatic turn for the worse. After years of restlessness with
the stagnant political process, in-fighting among Palestinian sects led to a
bloody coup d’état, with Hamas8 taking de facto9 administrative control
3 Parties, on each end of the political spectrum, have referred to the areas known as the
Gaza Strip and West Bank as the Occupied Territories and/or Administered Territories.
See, e.g., Human Rights Council, Human Rights in Palestine and Other Occupied Arab
Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict,
U.N. Doc. A/HRC/12/48 (Sept. 15, 2009) [hereinafter Goldstone Report]. Since the legal
status of the Palestinian territories as “occupied areas” is a largely unsettled and
politically charged topic, this article instead refers to these areas as the “Territories.”
4 See Rockets from Gaza: Harm to Civilians from Palestinian Armed Groups’ Rocket
Attacks, HUM. RTS. WATCH (Aug. 6, 2009), http://www.hrw.org/en/reports/2009/08/06/
rockets-gaza?; International Law Series: The Right to Self Defense, NGO-MONITOR.ORG,
http://www.hrw.org/en/reports/2009/08/06/rockets-gaza-0 (last visited Feb. 22, 2012).
5 Rocket Attacks Toward Israel, IDFSPOKESPERSON.COM, http://idfspokesperson.com/
facts-figures/rocket-attacks-toward-israel (last visited Nov. 17, 2010).
6 Id.
7 Steven Erlanger, Israel’s Dilemma in Response to Rockets, N.Y. TIMES, Dec. 19, 2007,
available at http://www.nytimes.com/2007/12/19/world/middleeast/19mideast.html?
_r=1.
8 The U.S. State Department provides the following description of Hamas:
2011] POLITICIZATION OF LAW OF ARMED CONFLICT 71
of Gaza.10 Under Hamas’s regime, increased rocket attacks became the
daily reality for southern Israel.11 In 2008, Israel struck back in order to
“bring about an improvement in the security reality of the residents of the
south of the country.”12 The military offensive, entitled Operation Cast
Lead, was designed to “stop the bombardment of Israeli civilians by
destroying and damaging the mortar and rocket launching apparatus and
its supporting infrastructure.”13 Over the course of twenty-two days, the
Israeli Defense Force conducted both aerial and land military operations
against Hamas command posts, training camps, weapons caches, and
rocket and mortar launching sites.14
According to Palestinian figures, Operation Cast Lead resulted in
1,300 deaths, 5,300 injuries, and two billion dollars of damage to critical
infrastructure. Living conditions in Gaza deteriorated as food prices
soared to three times the pre-conflict level, damage to water wells and
pipes led to water shortages, and hospitals—damaged during the
HAMAS possesses military and political wings, and was formed in
late 1987 at the onset of the first Palestinian uprising, or Intifada, as
an outgrowth of the Palestinian branch of the Muslim Brotherhood.
The armed element, called the Izz al-Din al-Qassam Brigades,
conducts anti-Israeli attacks, previously including suicide bombings
against civilian targets inside Israel . . . [a]fter winning Palestinian
Legislative Council elections in January 2006, HAMAS seized
control of significant Palestinian Authority (PA) ministries in Gaza,
including the Ministry of Interior. HAMAS subsequently formed an
expanded, overt militia called the Executive Force, subordinate to the
Interior Ministry. This force and other HAMAS cadres took control
of Gaza in a military-style coup in June 2007, forcing Fatah forces to
either leave Gaza or go underground.
Country Reports on Terrorism 2009, STATE.GOV (Aug. 5, 2010), http://www.state.gov/s/
ct/rls/crt/2009/ 140900.htm.
9 BLACKS LAW DICTIONARY 427 (7th ed. 1999) (defining de facto as “[E]xisting in fact;
having effect even if not formally or legally recognized”).
10 See ISRAEL MINISTRY OF FOREIGN AFF., THE OPERATION IN GAZA: FACTUAL AND LEGAL
ASPECTS para. 40 (Jul. 29, 2009) [hereinafter The Operation in Gaza], available at
http://www.mfa.gov.il/MFA/Terrorism+Obstacle+to+Peace/Hamas+war+against+Israel/
Operation_in_Gaza-Factual_and_Legal_Aspects.htm.
11 Id. at 16–19.
12 Press Release, Israel Ministry of Foreign Affairs, PM Olmert Press Briefing on IDF
Operation in the Gaza Strip (Dec. 27, 2008), available at http://www.mfa.gov.il/MFA/
Government/Speeches+by+Israeli+leaders/2008/PM_Olmert_press_briefing_IDF_operati
on_Gaza_Strip_27-Dec-2008.htm.
13 The Operation in Gaza, supra note 10, at 32.
14 Id.

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