This panel was convened at 10:45 a.m., Thursday, March 25, by its moderator, Lucy Reed of the American Society of International Law and Freshfields Bruckhaus Deringer LLP, who introduced the panelists: Omar Dajani of the University of the Pacific, McGeorge School of Law; and Abraham Bell of the University of San Diego School of Law and the Bar Ilan University Faculty of Law.
INTRODUCTORY REMARKS BY LUCY REED *
Ms. Reed noted that the September 2009 report of the United Nations Fact Finding Mission on the Gaza Conflict known as the "Goldstone Report," after Mission head Justice Richard Goldstone--has been the catalyst of much international legal and political debate. Upon describing her instructions from Program Co-Chair Allen Weiner to lead a "thoughtful, moderated discussion" between two knowledgeable discussants who were bound to disagree on the basis and outcome of the Goldstone Report, Ms. Reed introduced the panelists. Their thoughtful, reasoned, and divergent analyses follow.
* President, American Society of International Law; Partner, Freshfields Bruckhaus Deringer LLP.
THE IMPORTANCE OF THE GOLDSTONE REPORT
I am very grateful to the American Society of International Law for initiating this discussion about the Report of the United Nations Fact-Finding Mission on the Gaza Conflict ("Goldstone Report" or "Report") and for inviting me to participate in it. I think the Report raises questions ripe for consideration in a forum of this kind--questions not only about the conduct of the parties to the conflict in Gaza and southern Israel last winter, but also about the content of humanitarian law at a time when it has never been more relevant to U.S. foreign affairs. In my view, the Report's answers to those questions have been obscured rather than illuminated by the storm of controversy that has attended its publication. For that reason, I am looking forward to having the opportunity here for a serious discussion about the Report's central legal and factual findings. It is long overdue.
I want to begin my remarks by highlighting what I regard as the Goldstone Report's most important contributions to the law of armed conflict and to efforts to promote compliance with the obligations it imposes. In the process, I will try to address some of the criticisms that have been leveled against the Report and the United Nations Fact-Finding Mission that produced it. I will conclude with a few words about the broader legal and historical context, for while I can understand the UN Mission's decision not to stray from jus in hello into even more turbulent waters, we should not forget what the Palestinian-Israeli conflict, at its core, is about and why it will not be resolved by military force.
DISTINCTION AND PROPORTIONALITY
But let me start where humanitarian law does, with the principles of distinction and proportionality. Notwithstanding the controversy it has elicited, I submit that the Goldstone Report hews largely to an orthodox, civilian-centered vision of the humanitarian obligations of parties to an armed conflict. It rejects the radical redefinition of the principles of distinction and proportionality that has been urged by Israel and some other governments--including, on some occasions, our own. But it also avoids making either sweeping generalizations about the law or close calls regarding the facts. In both of these respects, it is a conservative document, despite what some of its critics allege. And I think that its conservatism--the unwillingness of the UN Mission to abide further erosion of the core principles of the law of armed conflict, even while avoiding second-guessing the judgment of military commanders in close cases--will come to be regarded as the Report's most enduring substantive contribution.
That balance between faithfulness to principle and reasonable deference to military exigencies is reflected in several elements of the Report's legal analysis:
First, the Report declines to treat what would normally be considered government infrastructure of a civilian character, such as parliamentary buildings, ministries, and prisons, as a legitimate military objective merely because that infrastructure is administered by officials affiliated with an enemy government or what has been characterized as a "terrorist organization." (1) During the Gaza conflict, Israeli officials justified the massive destruction of such infrastructure on the grounds that it was a "Hamas Government site" or part of "Hamas' mechanism of control." (2) (Although these rationales are new, operations of this kind are not. Even prior to Hamas's takeover of Gaza, Israeli officials justified the destruction of the Palestinian Authority's civilian infrastructure in Gaza as a means of retaliating against and deterring attacks by Hamas militants. For example, one official explained that the demolition of the civil airport in Gaza in January 2002 was intended "to show a glimpse of what can and will be done in the future if the situation worsens.") (3)
The Goldstone Report unequivocally rejects this line of thinking. Adhering to the principle articulated in Article 52 of the first Additional Protocol to the Geneva Conventions--that "military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action" (4)--the Mission refuses to expand the concept of "effective contribution to military action" to include routine, non-military functions of an enemy government. (5) In other words, a ministry of health may not be targeted merely because the efficient administration of health care is likely to bolster an enemy government's domestic popularity or because of the minister's political affiliation. To allow such an interpretation would eviscerate the principle of distinction.
I should add that the fact that the entity controlling a government has been designated a "terrorist organization" by other states does not alter the need to distinguish, for the purposes of humanitarian law, between the government's civilian and military functions and infrastructure. Now let me be clear: I do not for a moment contest that some of Hamas's so-called "military" operations constitute illegal terrorism. But even before it entered government, Hamas was also an important provider of social services, and it participated in the Palestinian legislative elections with Israel's blessing. I am uncomfortable with the view that a government or organization's commission of illegal acts "infects" all of its other functions and institutions, and I am unwilling to accept the notion that a state can sweep aside the principle of distinction simply by labeling its adversary "terrorist." Indeed, the potential for abuse of that label cannot have been lost on an anti-apartheid crusader like Justice Goldstone, who would have seen it wielded unscrupulously against the African National Congress.
That said, the Goldstone Report does not suggest that civilian institutions and infrastructure are always off limits. It acknowledges that "dual use" infrastructure may legitimately be targeted and that the use of civilian infrastructure by combatants may strip it of its immunity from direct attack. (6) Moreover, it applies those caveats to Israel's benefit. For example, even though the Report notes the general rule that members of law enforcement agencies are considered civilians, it accepts the possibility that some of the members of the Gazan police may legitimately have been considered combatants on account of continuing involvement with armed groups, (7) and it assesses the legality of Israel's attacks on police stations and a police graduation ceremony in terms of proportionality, rather than purely distinction. (8)
Second, the Goldstone Report reaffirms the presumption that, in cases of doubt, civilian objects are not to be treated as military objectives. (9) The testimonies of Israeli soldiers who had been deployed in Gaza indicate that they had been instructed to turn this presumption on its head. One soldier described the orders he had been given as providing: "If you are not sure, shoot; if there is doubt, then there is no doubt."][degrees] Another stated, "In urban warfare, anyone is your enemy. No innocents." (11) Expressing alarm regarding the apparent consequences of these kinds of instructions--i.e., the hundreds of Palestinian civilians killed by Israeli fire and the catastrophic destruction of civilian infrastructure--the Report concludes that Israeli forces' failure to exercise sufficient care in distinguishing between civilian objects and military objectives in a range of specific cases was reckless and unlawful. (12)
Again, however, it should be stressed that the UN Mission carefully avoided passing judgment with respect to close cases. There is a substantial gap between a soldier's accidental killing of a civilian in a crossfire in the heat of urban combat and firing upon civilians carrying white flags in open areas already pacified by the army. It was, for the most part, the latter kind of incident upon which the UN Mission focused, not the former; and this focus arose not from bias against Israel but, on the contrary, from deference to the judgment of Israeli military commanders. (13) Indeed, critics who claim that the UN Mission failed to appreciate the challenges presented by urban warfare appear themselves not to appreciate that few of the violations the Mission highlighted arose in that context.
Third, the UN Mission's effort to hold the line against the assault on the bedrock principles of humanitarian law is also evident in its proportionality analysis. Quoting the report to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in relation to the bombing of Yugoslavia by forces of the North Atlantic Treaty Organization (NATO), the Goldstone Report notes that commanders have the duty "to refrain from launching attacks which may be expected to cause disproportionate...