Why Goldstone's "Retraction" is Not Enough

JURIST Guest Columnist Laurie Blank of Emory Law School says the Goldstone "retraction" does not mitigate the report's damaging effects on the law of war. Among the report's flaws, it ignored the element of intent for the war crime of intentionally killing civilians, and it failed to condemn Hamas' endangerment of its own civilians...
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Justice Goldstone's op-ed in last week's Washington Post may lead some to think that the furor over the Goldstone Report - and its conclusions about Israel's 2008-2009 Operation Cast Lead in Gaza - is coming to an end. Justice Goldstone wrote that if he had known then what he knows now, the report would not have charged Israel with intentionally targeting civilians and would have recognized the validity of Israel's domestic investigations and that Hamas would not undertake any such investigations.

So does this "retraction" undo the bias, faulty legal analysis and unjustified conclusions that have made the Goldstone Report a lightning rod for extensive criticism? Absolutely not.

Two of the Report's most damaging claims are that Israel intentionally targeted civilians and that Israel's own investigative apparatus does not meet international standards. The op-ed piece surely takes the sting out of both of those claims and in that sense is a significant public relations victory for Israel. But Goldstone's statement does nothing to mitigate the extraordinarily damaging effects the Report could have on the law of war, encouraging those who use civilians as a strategic tool.

First, the report incorrectly presumes intentionality from a lack of evidence. The "retraction" does not undo that presumption, but simply supports a different conclusion in the face of "newly discovered" facts. It thus leaves intact the report's flawed elimination of intent as a crucial element of the war crime of intentionally killing civilians.

It may seem that stricter parameters on responsibility for civilian deaths would only increase civilian protections and therefore be a positive development. Unfortunately, this is not the case. Once intent is eliminated, it is a quick step to the faulty conclusion that any civilian death in war is a war crime. Next, one party purposely places civilians in danger so that attacks by the other side will kill more civilians and lead to charges of war crimes, regardless of intent. Such conduct is a horrifying exploitation of civilians for strategic benefit.

Second, the "retraction" does not even address - let alone reverse - how the Goldstone Report raises the specter of ever-greater danger for civilians in conflict zones. This risk arises from the Report's failure to even discuss the legal obligations a defending party has to protect civilians and the precautions it must take accordingly.

After concluding that Hamas' rocket attacks on civilian areas of southern Israel were - and continue to be - war crimes, the report then pays little, if any, attention to Hamas' obligations to the people of Gaza in its 575 pages. Just as Israel is obligated under the law of war to take precautions to protect innocent civilians when it launches attacks, Hamas has corresponding obligations to protect civilians from the effects of those attacks. Israel undertook massive, extensive precautions in accordance with those legal obligations. Admittedly, as Israel's own investigations show us, there were a number of violations of the law that must be, and are being, addressed and punished.

Hamas, in contrast, not only took no precautions to protect its own civilians, but affirmatively engaged in conduct that exacerbated the danger civilians faced from Israeli military operations. The law forbids placing military objectives in densely populated areas, yet Hamas uses this as its primary strategy. The law mandates that those who are fighting distinguish themselves from those who are not. Part of the fundamental principle of distinction, this obligation helps protect innocent civilians from attack by making it possible for soldiers to assess who is the enemy and who is an innocent civilian. Hamas turns this obligation on its head and seeks tactical advantages by fighting in civilian clothing and from within the civilian population.

One would think that an international commission tasked with investigating violations of the law of war - a law designed in part to protect civilians - would come down particularly hard on any violations that threaten that fundamental purpose. Think again.

The Goldstone Report's failure to condemn - or even criticize in any way - these and other violations of Hamas' obligations to its own civilians serves only to encourage such violations in this and future conflicts. Such conduct is not unique to Gaza, of course; the Taliban specialize in the exploitation of the civilian population for strategic and tactical gain in Afghanistan and Pakistan. For this reason, we cannot allow any dilution of legal protections in wartime. That is why Israel, the United States and other militaries must abide by the law of war even in the face of enemies who exploit it. Equally important, that is why we must redouble efforts to hold accountable those who use the civilian population as a shield or for tactical or strategic advantage.

The Report's effects risk stretching beyond the Israeli-Palestinian conflict. Until any retractions regarding the report strongly and unquestionably condemn such violations and reaffirm the obligations of all parties to protect civilians, the Report will continue to undermine the law and pose a danger to the civilians the law seeks to protect.

Laurie Blank is the director of Emory Law's International Humanitarian Law Clinic and was one of the principal founders of the clinic in early 2007.

Suggested citation: Laurie Blank, Why Goldstone's "Retraction" is Not Enough, JURIST - Forum, Apr 14, 2011, http://jurist.org/forum/2011/04/why-goldstone's-retraction-is-not-enough.php.

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