The Legality of the Goldstone Report

An excellent conference in New York last week focused on the legal, moral and religious implications of the Goldstone Report. The conference was organized by the “Israel-Palestine NGO Working Group” and hosted three distinguished speakers: Professor Richard Falk, Rabbi Lynn Gottlieb and Mr. Peter Weiss.

Falk stated that the Goldstone Report was a milestone in terms of accountability with respect to humanitarian law. It was, he said, an exceptionally credible, neutral and factual investigation into the war crimes committed during Operation Cast Lead in January 2009. However, certain media groups and politicians sought to discredit Goldstone’s conclusions, even though the findings were unassailable.

Firstly, said Falk, the discoveries of the Goldstone Report were not new. Investigations by Amnesty International, Human Rights Watch and an array of Israeli and Palestinian NGOs had already drawn the same conclusions. Furthermore, as the Rabbi Gottlieb so eloquently made clear, there are thousands of first-hand accounts of the atrocities of Israeli occupation in Palestine.

Secondly, the report had a deliberately narrow and unambiguous focus. Goldstone focuses on the targeting of civilians, the targeting of protected buildings (UN schools, hospitals etc) and the use of illegal weapons (white phosphorous, depleted uranium, cluster munitions). Through focusing on three distinct violations of international law, the Goldstone Report remains unambiguous.

Thirdly, the Goldstone Report was conducted by a highly professional team of legal experts, led by the distinguished, South African lawyer Richard Goldstone.

Fourthly, the excuse of the Israeli government that it was acting in self-defense is flawed for two reasons: it was Israel that violated the Israel-Palestine ceasefire; and, as the occupying force, Israel has a duty to protect those it occupies, the Palestinians.

Finally, many critics have argued – like Secretary of State Hilary Clinton - that Goldstone sets “dangerous” new standards for international law; this is not true. Goldstone merely reasserts the foundations that international law was built on: accountability and no impunity.

So, if the Goldstone Report is clearly just and lawful, why does the UN not enforce its conclusions?

Falk argued that a double-standard exists for some UN-member states, the US in this instance. Both President Obama and President Bush stated that they would not seek a permission slip from the UN when pursuing security concerns. The veto given to the permanent five effectively legitimizes the practice of using the UN only when it aligns with national interests.

The erosion of the doctrine of universal jurisdiction is a further problem for international law. Mr. Weiss stated that universal jurisdiction was a positive direction in which international law was moving. Unfortunately, though, changes in British and Spanish law demonstrate how universal jurisdiction is a rapidly deteriorating legal doctrine. The UK is softening its universal jurisdiction following the near indictment of Israeli minister of Foreign Affairs Tzipi Livni; and Spain, once known for being a strong voice for universal jurisdiction, will now only take legal action if the case involves Spanish citizens.

The International Criminal Court would be the logical institution to prosecute the crimes of Operation Cast Lead. However, at the moment, the ICC does not have the jurisdiction to indict Israeli leaders and make them accountable for their actions. Israel is not a signatory to the ICC, and consequently the case must be referred by the Security Council for investigation. But the Security Council veto – namely from the US - stands in the way.

The final and most important obstacle inhibiting international law in Israel is insufficient engagement of civil society. The Goldstone Report, and international law more generally, needs greater recognition and popular support. The importance of civil society engagement stems from two notions: firstly, that morality is found in individuals not governments; and secondly, the idea that few are guilty but all are responsible. Richard Faulk said that all those who believe in international law “should do everything in [their] power to make the Goldstone report something starkly rememberable, as the turning point where those under a geo-political umbrella will finally feel the raindrops.”