The Goldstone Report on the Gaza conflict: an agora.

Farer, Tom

Introduction

Tom Farer

  By concluding that, in its assault on Gaza under the rubric of
  self-defense, Israel had targeted the civilian infrastructure
  and consciously "punished" the civilian population and
  demonstrated indifference to the suffering of noncombatants and
  engaged in other acts in violation of the laws of war, behaviors
  that possibly constituted in their totality crimes against humanity,
  the Goldstone Report became almost as controversial as the
  events precipitating it. In this agora, four eminent international
  lawyers, a mix of scholars and practitioners, assess from their
  distinctive perspectives the report's methodology, its compliance
  with fact-finding norms, and the overall quality of its effort to
  apply norms of international law to a bloody event in the ongoing
  multidecade conflict between Jews and Arabs over the governance and
  division of the former British-controlled Palestinian Mandate.
  Dialectically, they help to structure future debates over
  UN-sponsored fact-finding and also the normative parameters of the
  use of force by powerful states engaged in asymmetrical conflicts.
  Keywords: Israel; Goldstone Report; asymmetric conflicts;
  Palestinian-Israeli conflict; crimes against humanity; Israel and
  human rights; Hamas; Hamas and violations of human rights;
  UN fact-finding; human rights at the UN

IF MATERIAL resources alone governed the allocation of power, security, wealth, and other goods, national governments would invest far less time and energy in efforts to influence the activities of the various organs of the United Nations. Hence the substantial size of their investment attests to the importance imputed by governing elites (and many scholarly students of international relations) to nonmaterial resources; in particular, the generation, clarification, and application of norms. It seems clear that political strategists attribute material consequences to norms because norms reflect popular and governmental perceptions of what behavior is or will generally be deemed permissible and what behavior will evoke fear or revulsion. Their human capital investment in the UN coincidentally confirms the conviction of governments and other important actors in the field of international relations that UN organs and activities contribute abundantly to the normative process.

One form that contribution assumes is the reports stemming from inquiries commissioned by various UN organs that are carried out by individual rapporteurs, commissions, and committees. Although the focus may be on the facts of a particular case or a set of cases, the authors of those reports need to invoke law in order to determine what facts are relevant and what conclusions to draw and, often, what sorts of recommendations to make. Many of the reports concern human rights, which is a bit ironical in that in its early years the principal organ of the United Nations concerned with human rights, the Human Rights Commission, strove mightily to evade reporting on facts; (1) above all, facts related to noncompliance with human rights norms and with the overlapping norms of the laws of war or international humanitarian law as that body of laws is often called today. But fact-finding and the resulting reports have been prominent in other areas; for instance, with respect to alleged violations of norms governing the proliferation of weapons of mass destruction.

I believe that the UN's potential for clarifying norms and exposing violations far exceeds its present output. The UN will be able to tap more deeply into its potential to clarify and particularly to persuasively expose gaps between norms (whether treaty or custom based) and their effective application if its reports meet widely accepted standards of fairness, accuracy, historical depth, and contextual sophistication and if they are noticed and disseminated. My coeditor, Tim Sisk, and I believe that one useful function of a journal devoted to global governance is to foster critical appraisal of the reporting function as well as to disseminate knowledge of reports that, by their subject and quality, can contribute positively to public appreciation of controversial issues and thereby influence national and transnational public opinion and ultimately the behavior of states in relation to enforcing compliance with international norms.

The "Report of the United Nations Factfinding Mission on the Gaza Conflict," (2) the so-called Goldstone Report named after the mission's chair, Richard Goldstone, has penetrated public consciousness like few other reports and elicited a remarkable degree of abuse from public and private sources. That in itself seemed sufficient reason to ask experts whom we respect to join in reflecting on the report and the reactions to it and to use our first "agora" as a vehicle for the dissemination of their views. But this was only a secondary reason. A more important reason was that the Israeli operation in Gaza focused issues of central importance to international peace and security about the use of force in asymmetric conflicts, the sort of conflicts that are the norm today. Yet a third reason was our concern with the symbolic resonance of the Israeli-Palestinian conflict; in particular, its iconic role in the jihadi narrative that justifies employment of mass casualty terrorism directed against Western targets (and persons and institutions deemed collaborative with the West) as acts of self-defense against pitiless opponents.

Experts are also human beings who cannot avoid carrying about moral, political, ideological, and group-identity commitments that are bound to influence their judgments about the relevance of facts, the reliability of evidence concerning those facts, and the identification, interpretation, and application of relevant legal and moral norms. So in seeking participants in this agora, we certainly tried to find scholars and practitioners knowledgeable about international law and human rights (and about the problematic of fact-finding in highly conflictual settings). Other criteria were that they be sufficiently concerned about the conflict between Israel and the Palestinians, and be well acquainted with the historical setting and of predictably different points of view and sympathies, but with a common commitment to bona fides in the expression of their views and a readiness to respect the bona fides of persons with other points of view. Finding people who met all of these criteria and were willing to write about the report and to adhere to our rather strict time limits was not altogether easy. But I feel that we have been successful and that the essays of Dinah PoKempner, Ed Morgan, Richard Falk, and Nigel S. Rodley will collectively contribute to a more rational and structured discussion of the Goldstone Report and of the issues it raised (or should have raised).

I use the future tense in the previous sentence and the paragraphs that follow because, as I am writing this Introduction, I have not yet seen the final drafts. At this point, I simply want to underscore several issues that I think these authors should address. (3)

One is whether normative restraints on the means a government may legitimately employ in seeking to reduce domestic threats to public order are greater than the restraints it faces in confronting a transborder threat. (4) More specifically, must it choose means that minimize the risk of injury to innocent persons ("collateral damage")? My own view is that governments should be deemed subject to greater restraints in confronting domestic threats in part because a government normally has more options in avoiding and preempting domestic threats (except in the context of large-scale civil war) to public order and reducing their causes than it does with respect to threats originating in another sovereign state. Not only does a government have more options but, in addition, it is legally restrained by the doctrine of national sovereignty and by collective concern for international peace and security from directly addressing the grievances in foreign jurisdictions that give rise to the threat or preventively disabling threats that are incubating beyond its borders. In addition, the widely (but, by no means, universally) recognized Responsibility to Protect (5) applies to governments in relation to their own citizens. This responsibility, I believe, has two dimensions. One is protecting innocents from criminal assault. The other is avoiding to the greatest extent possible means of law enforcement that are virtually certain to injure innocents. Furthermore, by ratifying the International Covenant on Civil and Political Rights, as virtually every government has, each state assumes special positive responsibilities in relation to persons residing within its jurisdiction. A ratifying state does not assume an obligation to rectify violations of due process and other rights in other jurisdictions.

The issue as I have framed it is relevant to the Gaza conflict but, of course, only if Gaza is deemed to be a territory within Israel's de facto frontiers. Elsewhere I have defended the conclusion that Gaza is analogous to a sprawling prison camp from which, on the basis of a simple cost-benefit analysis, the guards have been removed to the periphery from which point they continue to control the lives of the prison inmates to the extent that it serves the interests of the Israeli government. In this connection, I note continued Israeli control over Gaza's airspace and seacoast and its claim of right to enter the territory at any time to seize or kill persons deemed to be plotting against Israeli public order. In short, Israel does not act as if, in moving forces (and settlers) out of Gaza, it has thereby recognized Gaza as a sovereign state.

A second related issue that I hope the authors will address is when and whether states are prohibited from employing violent means certain to cause collateral damage if the same result can be achieved by other means, and whether other means were available in this instance. It is alleged, for instance, that before the attack on Gaza began, Hamas had offered a mutual cease-fire if Israel would promise to cease seizing or killing Hamas militants. Assuming that Hamas had done so, was Israel obligated to accept that offer rather than launch an assault which, by any count, killed hundreds of civilians? Could it be more narrowly argued that Israel had an obligation to make concessions only if the actions demanded were, in any event, required by international law? An example might be releasing Palestinian prisoners who had been held for months or years without charge or trial or had been tried by special military tribunals failing to meet universal due process standards (which is a normal incident of military trials other than courts-martial exercising jurisdiction over one's own troops).

A third issue concerns the legality of what appears to be Israel's declarative reprisal policy of disproportionate response to illegal acts, a response designed to optimize deterrence. Aside from the question of whether reprisals need to be proportional to the injury suffered, there is the related question of whether reprisal can include attacks on civilian infrastructure at least in part to create popular demands on political leaders to avoid provoking Israel.

Finally, I hope that one or more of the writers will discuss the methods employed by the Goldstone Mission in its efforts to ascertain the facts. Did they correspond to best practices as developed by well-established and prestigious investigative bodies like the Inter-American Commission on Human Rights of the Organization of American States? (6)

Notes

Tom Farer is dean of the Josef Korbel School of International Studies at the University of Denver and is the former president of the Inter-American Commission on Human Rights of the Organization of American States. His most recent book is Confronting Global Terrorism and American Neo-conservatism: The Framework of a Liberal Grand Strategy (2008).

(1.) See Tom Farer and Felice Gaer, "The UN and Human Rights: At the End of the Beginning," in Adam Roberts and Benedict Kingsbury, eds., United Nations, Divided World: The UN's roles in International Relations, 2nd ed. (Oxford, England: Clarendon Press, 1993), pp. 272-278.

(2.) UN General Assembly, "Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-finding Mission on the Gaza Conflict," 2009 (Goldstone Report), available at www2.ohchr.org/english/bodies/hrcouncil/special session/9/FactFindingMission.htm.

(3.) Although they were given broad guidelines, we felt obliged to also give them broad discretion about how to best utilize the spatial limits that we had to impose.

(4.) See my Huffington Post blogs as follows: "Israel in Gaza: Self Defense or Slaughter," 5 January 2009; "Gaza and 'Crimes' of Status," 22 March 2009; and "A Question of Proportionality: Israel's Excessive Airstrikes," 23 March 2009, available at www.huffingtonpost.com/tom-farer.

(5.) See International Commission on Intervention and State Sovereignty report, The Responsibility to Protect (Ottawa, ON: International Commission on Intervention and State Sovereignty, 2001), available at www.responsibilitytoprotect.org/index.php/publications/core-rtop-documents; see also Gareth Evans and Mohamed Sahnoun, "The Responsibility to Protect," Foreign Affairs 81, no. 6 (Nov.-Dec. 2002): 99-110.

(6.) See Tom Farer, "The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox," Human Rights Quarterly 19, no. 3 (1997): 5 10-546.