BETWEEN THE LINES Q&A with Richard Dieter

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for release Feb. 10, 2010

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Goldstone Defends International Law
and Accountability for War Crimes in Gaza

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Excerpt of speech by Judge Richard Goldstone,
head of United Nations Fact-Finding Mission on the Gaza Conflict, recorded and produced by Melinda Tuhus

South African Judge Richard Goldstone has a long and distinguished career serving on his own country's post-apartheid Constitutional Court -- and also on the tribunals investigating war crimes in the former Yugoslavia and Rwanda. But he is best known as the jurist who headed up an investigation into possible war crimes by both Israel and Hamas, which controls Gaza, during Israel's three-week invasion of Gaza in the winter of 2009. His report, released in September, found that both governments had violated international law, but came down most heavily on Israel, calling the actions of the Israel Defense Forces disproportionate. During the conflict 1,300 Palestinians in Gaza were killed -- more than half non-combatants, including several hundred children. The report also accuses Hamas of targeting rocket fire on civilians, in which 13 Israelis died -- a 100 to 1 ratio.

The Goldstone Report recommended that Israel and Hamas each conduct its own credible investigation within six months, or face charges at the International Criminal Court or ICC. The six months are now up, and while both governments have conducted reviews, neither has so far found fault with its own conduct during the invasion. United Nations Secretary General Ban Ki-moon released a report on Feb. 5 saying that neither investigation was far enough along to be able to draw conclusions on whether Israel or Hamas should be referred to the ICC.

In prepared remarks at Yale University on Jan. 27, Goldstone spoke generally about the modern development of laws relating to armed conflict, focusing on universal jurisdiction, proportionality, equality and "complementarity," as well as addressing issues specific to the Israel/Gaza conflict.

RICHARD GOLDSTONE: The present government of Israel claims that the international laws of armed conflict should be changed to allow disproportionate military responses in order to attack terrorist groups. This should not be regarded as a plea by Israelis for the right to take measures in self-defense, for that is not seriously denied Israel. It should also not be regarded as a plea to take military measures against members of terror groups responsible for such attacks. It can logically only be interpreted as a plea for the right to take measures that are regarded as unlawful under present rules of international law. No reason has been proffered to support that claim, and I would suggest there is not one. From recent media reports in Israel, it would appear that leaders of the Israel Defense Forces have come to recognize that the suggested changes to which they've referred in international law are not going to happen, and clearly they cannot happen without a wide consensus of the international community.

The laws relating to armed conflict requiring proportionality with regard to military action. That means that the number of civilians who stand to be killed or injured by an attack must be justifiable, having regard to the military advantage to be gained by the action. Thus, for instance, if there are three or four terrorists firing from the roof of a hospital containing hundreds of patients, it would not be justifiable or lawful under the rules of law as I understand them, to bomb the hospital complex. Action taken to take out the terrorists that would cause the death or injury of a small number of civilian patients may well be justified, depending on the danger caused by the attacks from the hospital and the military advantage in bringing that to an end. The former - bombing the whole hospital - would be a war crime; the latter would not.

These, as I've already indicated, are difficult decisions, especially in what has aptly been called the fog of war. That is why the law grants a margin of appreciation in favor of commanders who take such decisions.

I do not propose this evening to discuss the findings of the fact-finding mission on Gaza, and will content myself by saying that both Israel and Hamas were found to have launched attacks against civilians in Israel and Gaza in a manner that constituted war crimes, and possibly crimes against humanity. I would emphasize only that there was certainly no denial of Israel's right to defend its citizens from unlawful attacks. Indeed, the criticisms of Israel in the report were based on the lack of proportionality, which assumes the right to take military action. International law makes the exercise of that right effective, notwithstanding the requirement of proportionality.

I propose to conclude this examination of the current state of holding war criminals accountable with a short consideration of the modern system called complementarity. This requires that before the International Criminal Court is able to exercise its jurisdiction over the national of any country, the government of that country is entitled and has to be given the opportunity of taking control of that investigation, and if there's evidence to support it, any prosecution of that person. If the government does that in good faith, the ICC simply has no jurisdiction. If the domestic investigation is genuine and not calculated to avoid the jurisdiction of the court, then, as I say, the court loses jurisdiction in that case.

This system of complementarity is designed to ensure that whenever possible, suspected war criminals should be investigated and tried by the courts of the suspect's own nation. This has a number of advantages. One is that in order to exercise the right of complementarity, nations are encouraged do promulgate laws that make international crimes part of their own criminal law. Clearly, a nation can't exercise its right of complementarity if its courts can't investigate and can't prosecute the crimes in question. And many of the countries that have ratified the (ICC) treaty have changed their laws to incorporate these international crimes and so enable them to do their own investigations should they become relevant and necessary.

Another advantage of the system of complementarity is that alleged criminals would be tried under the laws of their own nations, and that's appropriate.

BETWEEN THE LINES: After Goldstone's talk, several of the questions from audience members were critical of Goldstone, as a banner was unfurled equating his Gaza report with the publication in 1903 of the anti-Semitic Protocols of the Elders of Zion. One questioned what she called the disproportionate number of UN resolutions over the past 40-plus years, condemning Israel for its treatment of Palestinians. She asked Goldstone why he allowed himself to be used by anti-Israel forces. He responded:

RICHARD GOLDSTONE: It's a complex issue, and Israel isn't the only nation that's been treated disproportionately and, in my view, unfairly. It's a question, again, on situations...it's a matter of politics, not a question of morality. The United Nations has a dominant group of the non-aligned movement, and the issue of Palestinians has assumed a tremendous importance to them, and they're using it. It used to be South Africa that achieved that attention before the end of apartheid. There were as many resolutions about South Africa, if not more, than there were about Israel. It's a question of politics; it can't be justified.
Judge Richard Goldstone spoke at the MacMillan Center at Yale University on Jan. 27. This segment was recorded and produced by Between The Lines' Melinda Tuhus.

Related links:

"Bill Moyers' Journal Interview with Judge Richard Goldstone," PBS, Oct. 23, 2009

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Melinda Tuhus is a producer of Between The Lines, which can be heard on more than 45 radio stations and in RealAudio and MP3 on our website at www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine,Between The Lines for the week ending Feb. 5, 2010. This Between The Lines Q&A was compiled by Melinda Tuhus and Anna Manzo.

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