Liberal democracies such as Israel and the United States, which are engaged in a long struggle against transnational terrorism and depend on their armed forces on a daily basis to defend their ways of life, have a special interest in the struggle over the international laws of war...However, to the extent that the international laws of war are coopted by authoritarian states and transnational elites with their own political agendas, liberal democracies will be compelled to assume even greater responsibility for interpreting, upholding, and defending the international laws of war...
The Goldstone Report got the facts and the law wrong. The report was so contrary to international law (e.g., in failing to defer to national sovereignty and law) one has to wonder how Goldstone got so far off track. Was this pure bias?
I don’t know what motivated Goldstone or the other members of his mission —...But when intelligent people go wildly astray, when they sign their names to a document that twists the facts, misapplies the law, and indeed proceeds on the basis of a mandate lacking proper legal foundations, and all their errors operate to demonize one side, then bias becomes a plausible hypothesis.
The failure of the Presidential Statement to recognize that states accused of war crimes have the right and primary responsibility to undertake investigations...betrays a determination to effectively rewrite the international laws of war by shifting responsibility from states to international entities...the notorious Human Rights Council, abridged Israel’s rights and interfered with its responsibilities under the international laws of war by launching an investigation before Israel could have been expected to complete more than the preliminary stages of its own. In contrast, in the case of the Gaza flotilla the UN waited for Israel to complete its investigation and drew on Israel’s analysis and findings before it issued its own report. That was proper. The Palmer report found that Israel’s blockade of Gaza was clearly legal while concluding, on a matter over which reasonable people could differ, that in the case of the Mavi Marmara Israel used excessive force in defending its legal blockade.
Nevertheless, the enemies of Israel, who form a powerful voting bloc at the UN, have an interest in eroding the claims of national sovereignty and limiting the rights and responsibilities of states in the event of war crimes allegations. And progressive opinion wants more judicial power to be vested in international entities to investigate and punish war crimes on the supposition that they are more impartial and reliable. But that supposition is dubious. The transnational elites that would stand in judgment have interests and ambitions of their own; they lack democratic accountability and national security responsibility; and they operate in many cases without agreed upon authority for adjudicating disputes and enforcing the law.
Peter Berkowitz,
author of Israel and the Struggle Over the International Laws of War
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