Finding Facts But Missing the Law: The Goldstone Report, Gaza and Lawfare

Abstract

Civilian deaths in Gaza often seem to produce immediate conclusions regarding Israeli war crimes and other violations of international law. We often now see similar statements in the aftermath of U.S. or allied attacks leading to civilian deaths in Afghanistan. The increasing use of law as a tool of war - a practice termed “lawfare” - offers a likely and potentially disturbing explanation for the attempts to fashion every civilian death caused by a regular military as a war crime. As military forces, particularly the U.S., U.K. and Israeli militaries, find themselves increasingly under attack for alleged violations of IHL in conflicts in Iraq, Afghanistan, Gaza, Lebanon and elsewhere, one crucial contributing factor is the manipulation of international law - the very principles enshrined in the Geneva Conventions and the customary law - to create an appearance of war crimes and other atrocities being committed by the U.S. and Israel in particular.This article will explore these developments through the lens of the Goldstone Report, the report of the U.N. fact-finding mission tasked with investigating alleged violations of IHL and human rights in the 2008-2009 war in Gaza. It will examine how the Goldstone Report contributes to - even puts a stamp of approval on - the use of lawfare. In particular, this article will examine how the misapplication of IHL in the Goldstone Report exacerbates the manipulation of IHL by insurgents and terrorists, who use the law, and Western militaries’ adherence to the law, as a tool of war in today’s conflicts. Key areas include perfidy, military objectives and the targeting of protected objects, and the defending party’s obligations to take precautions to protect the civilian population. The Goldstone Report’s approach to IHL, if followed, would facilitate and encourage such manipulation of the law and, rather than leading to greater protection for civilians, actually produce conflict scenarios where civilians are at ever greater risk.