By PAUL H. ROBINSON
Wall Street Journal – 22 Sep 2009
http://online.wsj.com/article/SB10001424052970204488304574424872677357720.html

Last week the United Nations issued a report painting the Israelis as major violators of international law in the three-week Gaza war that began in December 2008. While many find the conclusion a bit unsettling or even bizarre, the report’s conclusion may be largely correct.

This says more about international law, however, than it does about the propriety of Israel’s conduct. The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.

Article 51 of the U.N. Charter forbids all use of force except that for “self-defense if an armed attack occurs.” Thus the United Kingdom’s 1946 removal of sea mines that struck ships in the Strait of Corfu was held to be an illegal use of force by the International Court of Justice, even though Albania had refused to remove its mines from this much used international waterway. Israel’s raid on Uganda’s Entebbe Airport in 1976—to rescue the victims of an airplane hijacking by Palestinian terrorists—was also illegal under Article 51.

Domestic criminal law restricts the use of defensive force in large part because the law prefers that police be called, when possible, to do the defending. Force is authorized primarily to keep defenders safe until law enforcement officers arrive. Since there are no international police to call, the rules of international law should allow broader use of force by victims of aggression. But the rules are actually narrower.

Imagine that a local drug gang plans to rob your store and kill your security guards. There are no police, so the gang openly prepares its attack in the parking lot across the street, waiting only for the cover of darkness to increase its tactical advantage. If its intentions are clear, must you wait until the time the gang picks as being most advantageous to it?

American criminal law does not require that you wait. It allows force if it is “immediately necessary” (as stated in the American Law Institute’s Model Penal Code, on which all states model their own codes), even if the attack is not yet imminent. Yet international law does require that you wait. Thus, in the 1967 Six Day War, Israel’s use of force against Egypt, Syria and Jordan—neighbors that were preparing an attack to destroy it—was illegal under the U.N. Charter’s Article 51, which forbids any use of force until the attack actually “occurs.”

Now imagine that your next-door neighbor allows his house to be used by thugs who regularly attack your family. In the absence of a police force able or willing to intervene, it would be quite odd to forbid you to use force against the thugs in their sanctuary or against the sanctuary-giving neighbor.

Yet that is what international law does. From 1979-1981 the Sandinista government of Nicaragua unlawfully supplied arms and safe haven to insurgents seeking to overthrow the government of El Salvador. Yet El Salvador had no right under international law to use any force to end Nicaragua’s violations of its sovereignty. The U.S. removal of the Taliban from Afghanistan in 2001 was similarly illegal under the U.N. Charter (although it earned broad international support).

An aggressor pressing a series of attacks is protected by international law in between attacks, and it can take comfort that the law allows force only against its raiders, not their support elements. In 1987, beginning with a missile strike on a Kuwaiti tanker, the Iranians launched attacks on shipping that were staged from their offshore oil platforms in the Persian Gulf. While it was difficult to catch the raiding parties in the act (note the current difficulty in defending shipping against the Somali pirates), the oil platforms used to stage the attacks could be and were attacked by the U.S. Yet these strikes were held illegal by the International Court of Justice.

Social science has increasingly shown that law’s ability to gain compliance is in large measure a product of its credibility and legitimacy with its public. A law seen as unjust promotes resistance, undermines compliance, and loses its power to harness the powerful forces of social influence, stigmatization and condemnation.

Because international law has no enforcement mechanism, it is almost wholly dependent upon moral authority to gain compliance. Yet the reputation international law will increasingly earn from its rules on the use of defensive force is one of moral deafness.

True, it will not always be the best course for a victim of unlawful aggression to use force to defend or deter. Sometimes the smart course is no response or a merely symbolic one. But every state ought to have the lawful choice to do what is necessary to protect itself from aggression.

Rational people must share the dream of a world at peace. Thus the U.N. Charter’s severe restrictions on use of force might be understandable—if only one could stop all use of force by creating a rule against it. Since that’s not possible, the U.N. rule is dangerously naive. By creating what amount to “aggressors’ rights,” the restrictions on self-defense undermine justice and promote unlawful aggression. This erodes the moral authority of international law and makes less likely a future in which nations will turn to it, rather than to force.

Mr. Robinson, a professor of law at the University of Pennsylvania, is the co-author of “Law Without Justice: Why Criminal Law Does Not Give People What They Deserve” (Oxford, 2006).

Printed in The Wall Street Journal, page A25

The report stunned even seasoned Israeli diplomats who expected no quarter from an inquiry set up by the United Nations Human Rights Council, which they believe to be deeply biased against Israel. They expected the military operation to be condemned as grossly disproportionate. They expected Israel to be lambasted for not taking sufficient care to avoid civilian casualties. But they never imagined that the report would accuse the Jewish state of intentionally aiming at civilians.

Israelis believe that their army did not deliberately kill the hundreds of Palestinian civilians, including children, who died during “Operation Cast Lead.” They believe, therefore, that Israel is not culpable, morally or criminally, for these civilian deaths, which were collateral to the true aim of the operation — killing Hamas gunmen.

It is, some would argue, a form of self-deception.

When does negligence become recklessness, and when does recklessness slip into wanton callousness, and then into deliberate disregard for innocent human life?

But that is the point — and it should have been the focus of the investigation. Judge Goldstone’s real mandate was, or should have been, to bring Israel to confront this fundamental question, a question inherent in the waging of war by all civilized societies against irregular armed groups. Are widespread civilian casualties inevitable when a modern army pounds terrorist targets in a heavily populated area with purportedly smart ordnance? Are they acceptable? Does the enemy’s deployment in the heart of the civilian area shift the line between right and wrong, in morality and in law?

These were precisely the questions that Israeli politicians and generals wrestled with in Gaza, as others do today in Afghanistan.

It is possible, and certainly arguable, that the Israeli policymakers, or individual Israeli field commanders in isolated instances, pushed the line out too far.

But Judge Goldstone has thwarted any such honest debate — within Israel or concerning Israel. His fundamental premise, that the Israelis went after civilians*, shut down the argument before it began.

Read it all: http://www.nytimes.com/2009/09/20/opinion/20landau.html?_r=2

* based of course, on unsubstantiated and in some cases, disproven, allegations that IDF forces deliberately shot at civilians waving white flags, etc.

I am a Holocaust survivor therefore, I can not help but regard all events that effect my country, Israel, from the point of view of a Holocaust survivor. Many of us after our liberation came here to fight in the War of Independence and help reestablish the state of Israel. Those of us who survived the wars, established families brought children and grand children to the world and today our grand children, in whose hands we leave the safety of this country and the safety of each individual, may be accused by you of war crimes and crimes against humanity.

Our grand children, who bodily stand between the Hamas terrorist of Gaza and hundreds of millions of Islamic fanatics who openly declare to the whole world that they will and must destroy us, are being accused by you, Mr. Goldstone of crime against Humanity . And what were their war crimes? And how else were they going to ferret out each Hamas terrorist hiding behind the women and children? The same terrorists who were shooting off rockets into Israel for eight bloody years? And why did Israel wait eight years to start with, while every country in the world would have sent in their armies after the first rockets hit their towns?

We waited because we knew that if we went into Gaza trying to ferret out the rocket attackers, A Mr. Goldstone would appear with his lofty Sickening biased morality and declare our grand children war criminals! We finally had to send them in because larger and larger rockets were arriving from Iran and a million Israelis were threatened by these rockets. That was not only unacceptable, but also intolerable. What would you have us do? Mr. Goldstone? How were we going to defend our towns against these attacks? If, by your definition, our grand children are war criminals, what are the Americans, the British and all the Nato forces who mercilessly bombarded Afganistan, killing thousands of civilians, the Americans and British in Iraq, the Russians who did the same in Chenchnya? I would agree to be called a war criminal if we simply sent in our planes and bombarded Gaza into the Stone Age, like the Americans did in Afganisthan. But we did not do it, Mr. Goldstone. Instead we sent in our grand children to be killed by the Hamas terrorist in order to avoid reducing Gaza to rubble.!!!!

And for this our grand children are war criminals?

I was in Dachau, Mr. Goldstone, when five hundred American planes flew over our heads almost daily and drop thousands of bombs on Munich’s civilian population, reducing the town to rubble and killing thousands of civilians. At the end of the war the British dropped thousands of incendiary bombs on Dresden killing hundreds of thousands civilians. The war was over, still they did it. Perhaps you should call all those war criminals before you so blatantly accuse us?

I know it is much easier to accuse the Jews than the Americans, or the British or the Russians, although by your definition they are the real war criminals. No, Mr. Goldstone, war is not a nice thing, but if we want to stay alive, we Jews have learned by experience, that unless we defend ourselves, no one else will defend us. What we really find despicable of you is that you, as a Jew, agreed to participate in a committee that a priori condemned us. Your feeble excuse is that the UN only gave you a mandate to investigate The Gaza War.

Condemning Israel is as if you would condemn the British and the French for starting World War Two, after all it was France and Britain who declared war on Germany. And ignoring the fact the Germans attacked Poland first!

As far as I am concerned, as a survivor, You, Mr. Goldstone are doing a selection, ( Like in the good old days) singling out Israel, a small country trying to survive the constant onslaught of millions of Arabs. You picked us as a convenient target when by your definition of war crimes, your true target should have been America, Russia, Nato forces who sent in heavy bombers to drop thousands of bombs on civilian targets in Afghanistan, Iraq, Chechnya, Belgrade and hundreds of other places around the world. If we should follow your dictate, the world has no right to defend itself against terrorism; if we do, we are to be classified as war criminals.

Mr. Goldstone,

It was from Gaza that the rockets came bombarding Israeli towns for eight years, and it is a fact that the Palestinians voted Hamas into power. They started the war. Those who start a war Should be blamed before those who defend themselves are blamed. You chose to ignore that fact.

All I can add is that as a judge, you are bigoted like the rest of the UN institutions, and as a Jew,

Shame on You.
Shana Tova
This is a simple moral issue, yet you chose to ignore it. Why???

Please explain it to us.
Sincerely yours,

Solly Ganor
Modiin – Israel