A Critique of the Goldstone Report and its Treatment of International Humanitarian Law
American Society of International Law Proceedings, Vol. 104
9 Pages Posted: 31 Mar 2010 Last revised: 1 Jun 2010
Date Written: March 30, 2010
This essay was prepared for a panel discussion on The Goldstone Report and the Modern Law of War at the 2010 Annual Meeting of the American Society of International Law.
The essay briefly examines the controversial Goldstone Report’s treatment of four legal issues: (1) collective punishment; (2) terrorism; (3) distinction and proportionality and (4) human shielding and perfidy.
The essay finds that the Goldstone Report’s treatment of these issues does not comport with commonly accepted understandings of the meanings of the doctrine. Specifically, on collective punishment, the Report expands the term to cover legal acts of retorsion such as economic and political sanctions. On terrorism, the Report rejects recent treaties and Security Council Resolutions and creates legal duties to support terrorist organizations and respect their alleged rights of free association. The Report erases the intent and anticipation components of distinction and proportionality, and also appears to find all collateral damage disproportionate. And the Report functionally grants some parties immunity from the rules of human shielding and perfidy by finding such acts unworthy of investigation or notice.
In addition, the essay highlights several problems in the Report’s treatment of evidence, as well as its decision to apply its revolutionary new legal standards only to Israel.
Keywords: international law, international laws of war, international humanitarian law, collective punishment, distinction, proportionality, terrorism, terrorist organizations, human shielding, perfidy, fact-finding, Human Rights Council, Gaza, Gaza Conflict
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