UNDERSTANDING
THE GOLDSTONE REPORT

From: The Jewish Policy Center:

Palestinian Rockets, International Law, and the Goldstone Report

by Johanna Markind

Palestinian Rocket Report

December 23, 2009

Twenty-two years ago, President Ronald Reagan cautioned that proposed extensions to "international law" would aid terrorists and endanger civilians. Today, in the aftermath of the Goldstone Report, his comments are more pertinent than ever. The Goldstone Report ignores multiple violations of international law by the Palestinian terrorist organization known as Hamas, and challenges Israel's right to defend its citizens from rocket attacks.

Hamas Violates Geneva

The Goldstone Report, a report on the Israeli incursion into the Gaza Strip in December 2008 and January 2009, was released in September 2009. It alleges that Israel violated international law in the course of defending its population from Hamas rocket attacks. The report has a great many flaws – too many to list here. For the purposes of this essay, however, the problems associated with international law begin on page 82 of the report.

Buried in the report, like a needle in a haystack, is the grudging acknowledgment of Goldstone and company that directing attacks against civilian targets, as Hamas has done with homemade rockets since 2001, is prohibited by international law. This is, in fact, prohibited by the Fourth Geneva Convention of 1949 (article 3).

Hamas Violates Oslo

Additionally, the Goldstone report completely fails to note that the rocket attacks violate the Oslo Accords – the peace agreement that guides relations between Israel and the Palestinians. Under the Accords (Annex I, Article II), the Palestinians are obligated to "act systematically against all expressions of violence and terror." They are further obligated to "apprehend, investigate and prosecute" terrorist incidents and to prevent incitement of terrorism.

Though Hamas does not recognize Israel or its obligations under Oslo, it is still bound by them, since the Oslo Accords were signed on behalf of all the Palestinians. At a minimum, Israel should not be accused of violating Oslo (as the Goldstone report charges) without also charging Hamas for its violations, or recognizing that Israel is reacting to Hamas' violations.

Hamas Violates 1977 Protocol

The 1977 Protocol, which the Goldstone report insists is binding as part of customary international law, bars attacks directed against civilians (Articles 2, 52). It also prohibits indiscriminate attacks that have no specific military objective, or which "employ a method or means of combat which cannot be directed at a specific military objective" (Article 4). Hamas' indiscriminate rocket attacks have numbered in the thousands since 2001.

The 1977 Protocol also forbids locating military targets – such as rocket launchers – within civilian populations (Article 58). The Protocol weakens the duty of armed forces to distinguish themselves from civilians, but it does require them to do so while they are on the attack (Article 44). It also forbids feigning civilian status to kill or injure the enemy (Article 37). Moreover, both the Geneva Convention (Article 28) and the Protocol (Article 7) recognize that parties may not render military targets immune from attack by locating them within civilian populations.

The Goldstone Report grudgingly acknowledged that "Palestinian armed groups…launched rockets from urban areas," and that "It may be that the Palestinian combatants did not at all times adequately distinguish themselves from the civilian population."

Rather than dwell on these clear and outrageous violations of the Protocol, the Report softens the blow by noting that it found no evidence that Palestinians deliberately "either directed civilians to areas where attacks were being launched or that they forced civilians to remain within the vicinity of the attacks." In the end, the Report's authors failed to emphasize that Hamas hid amidst civilians, despite clear evidence of this.

Israel and the U.N. Charter?

Richard Goldstone, a Jewish jurist from South Africa, acknowledges "Palestinian armed groups have launched about 8,000 rockets and mortars into southern Israel since 2001." However, his report places this discussion only after more than 353 pages devoted to alleged Israeli violations of Palestinian rights during the December 2008 – January 2009 military incursion. Even then, Goldstone only spends 26 pages discussing the rocket attacks. Thus, the report implies that the estimated 8,000 rocket attacks against Israeli civilians were a separate matter from Israel's military action, and not a causus belli.

Among the more egregious statements issued by Goldstone was this passage: "While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole."

Thus, while the U.N. Charter (Article 51) recognizes "the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations," the Goldstone Report ignores Israel's right to defend itself.

By contrast, Goldstone gives credence to the Palestinian narrative: "Palestinian armed groups generally justify these attacks as a legitimate form of resistance to Israeli occupation and as acts of self-defence and reprisals for Israeli attacks."

Moreover, the report downplays the fact that the Palestinians deliberately targeted civilians in order to spread terror: "Given the apparent inability of the Palestinian armed groups to aim rockets and mortars at specific targets and, the fact that the attacks have caused very little damage to Israeli military assets, it is plausible that one of the primary purposes of these continued attacks is to spread terror – prohibited under international humanitarian law – among the civilian population of southern Israel."

International Law is the Problem

Part of the problem stems from the current debates over interpreting and implementing international law. Rather than providing rules for waging war as humanely as possible, international law is increasingly used as a means to make the application of force – even self-defense – illegal.

Combatants are told they may only attack military targets, the definition of which is increasingly narrowed. This gets even more complicated when applied to unconventional warfare in which combatants cannot be distinguished from civilians, as was the case in the 2008-2009 Gaza incursion. Indeed, Hamas deliberately sought to hide among the civilians of Gaza.

The result is that it any application of armed force becomes a basis for complaint by the international community, leading to possible criminal prosecution within international courts. This is a growing trend in international law, to which the United States is not immune.

What is Needed

By protecting non-state actors like Hamas, which exhibit no respect for civilians (Israeli or Palestinian), and by purporting to regulate the propriety of Israeli actions even when Israel targets military objectives, the 1977 Protocol hampers Israel's efforts to defend its citizens and soldiers from attack.

More than two decades later, it is clear that Ronald Reagan was right. International law, if interpreted in the wrong way, can lend itself abuse. "[W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law," Reagan said.

In the wake of the Goldstone report, Israeli Prime Minister Netanyahu suggested international law should be revised to make it easier for nations to defend themselves against terrorism. Three months after the release of the Goldstone report, it is clear that Netanyahu is right. His advice should be heeded.

Johanna Markind is an attorney specializing in criminal law.