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

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 BLACK’S 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.