Wednesday, October 28, 2009

Cotler and Goldstone: Jurists butt heads on int'l law, but agree on rules of war


Call it the new game in town. Israeli officials, including Prime Minister Binyamin Netanyahu, have begun openly talking about amending international laws of war - written when uniformed armies were still facing each other on open battlefields - to make them fit better with the current reality of asymmetric warfare. Those days are long gone, the proponents of such a change argue, pointing out that modern warfare bears little or no resemblance to when clearly-marked columns of mechanized armor formations maneuvered and fought each other away from civilian population centers.

In these days of counter-insurgency, counter-terrorism and low-intensity conflict, modern armies battle enemies that strike from within, and then hide behind, civilian population centers.

The campaign to change the laws of war comes amid withering criticism of Operation Cast Lead, with the UN's Goldstone Report inflicting an intense legal and diplomatic assault on Israel.

However, legal experts, including international jurists and IDF officials, are not convinced that changing the laws of war is necessary, let alone possible in the short-to-medium term. IDF legal officials, for instance, are instead calling for an increased appreciation throughout the government of the complexities of fighting and winning asymmetric wars within the boundaries of international humanitarian law. There is an understanding within the General Staff that victory in modern warfare is measured by the perception of your cause's legitimacy.

"The definition of asymmetrical warfare is where one side operates according to international humanitarian law and the other side does not. That is the true asymmetry and the real challenge. So because our enemies operate [behind] human shields and target our civilians without prejudice, we have to respond within the boundaries of international humanitarian law. We have to win the war within these boundaries," a senior military official involved in planning Cast Lead recently told The Jerusalem Post.

Similarly, former Canadian justice minister Irwin Cotler believes that the current laws of war are sufficient, but what really needs to be changed is their selective application to Israel alone. Instead of trying to change the laws of war, Israel and its friends should work to change the principles and procedures of the UN itself, which displays a constant country-specific indictment of Israel, Cotler told the Post last week at the Israeli Presidential Conference in Jerusalem.

"You can't have a situation where you have special sessions targeting Israel and the rest of the world has immunity. You can't have a situation where Israel alone is excluded from the regional deliberative groups and therefore cannot participate in the drafting of resolutions. Within the UN system, there is a basis now to alter what is the source of the problem: the singling out of one member state for differential and discriminatory treatment under the existing legal framework," Cotler said.

South African judge Richard Goldstone, whose withering report has accused both Israel and Hamas of war crimes, agrees that Israel is disproportionately singled out by the UN Human Rights Council. Speaking on ABC's PM news show in Australia last Thursday, Goldstone said Israel had "good cause" to complain.

"I think it has been dealt with over some years exceptionally by the United Nations and the UNHRC. They've given over-emphasis to Israel in the Middle East and given too little consideration to other countries, the most recent being Sri Lanka," Goldstone said.

Nonetheless, the Israeli consensus is that Goldstone's report itself places disproportionate blame on Israel for the events of the Gaza war, and that the UNHRC exclusively blames Israel for war crimes during Cast Lead, ignoring any Hamas violations of international law.

The two respected Jewish jurists, Goldstone and Cotler - the latter being involved in helping Israel extricate itself from the ramifications of the Goldstone Report - believe the existing laws of war are not the problem, and they both stress the need for Israel to perform an independent probe of the IDF's actions in Cast Lead. An internal, serious probe would take the heat off the international efforts to haul Israel before the International Criminal Court, both men argue.

"I think the interpretation of the rules may change from decade to decade, but the fundamental principles remain the same, and that's to protect civilians from victimization during war," Goldstone told ABC's Mark Colvin.

But while Goldstone focused predominantly on Israel's January response to Hamas's eight years of rocket attacks on Sderot and other southern communities, Cotler has taken a wider view.

"During Cast Lead and before it, Hamas committed several war crimes and crimes against humanity. You don't need to create a whole new law of war to be able to hold Hamas responsible. Goldstone did not address most of the existing laws of war with respect to Hamas, like the Genocide Convention, probably the most important of the treaties, which expressly prohibits, under article 3, incitement to genocide. Hamas's charter serves as an example of incitement to genocide and a standing violation of the Genocide Convention. Did Goldstone deal with that? No. Did he mention the charter? No. Does he talk about the violation? No," Cotler said.

Cotler believes that even if Israel managed to amend the laws of war, very little would change if selective prosecution and selective singling out of Israel continued.

"The military people talk a lot about asymmetric warfare, but it's all there in terms of the laws of war. The laws of war are very expansive and comprehensive. The basic thing is [that] what you need is equality before the law. Israel, like any other state, is responsible for any violation of humanitarian law, but that's the point: like any other state. It's not the issue that Israel shouldn't be held responsible; it's that other states aren't being held accountable. It's not that standards shouldn't be applied to Israel. They should be applied to Israel, but they're not being applied to anybody else. It's not that there aren't any rules for international monitoring - there are, but they're only applied to Israel," Cotler said.

"In international law, Israel has emerged as a Jew amongst the nations. It's treated in the international arena [the same way] anti-Jewishness would stereotype the Jews as a minority in any Diaspora country," Cotler says.

For more of Amir's articles and posts, visit his personal blog Forecast Highs
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