Article

The Goldstone report : politicization of the law of armed conflict and those left behind

Joshua L. Kessler

• Military law review, Vol. 209, Fall 2011, p. 69-121 : cartes

English

This article addresses the legal issues specifically pertaining to Operation Cast Lead in Gaza, and the United Nations Human Rights Council fact-finding mission’s troubling analysis thereof. Ultimately, the article concludes that the Mission’s one-sided analysis of Operation Cast Lead overshadows the very real and pressing effects of war on the civilian populations of both Israel and Gaza. By superimposing a capabilitiesbased paradigm on international humanitarian law—holding the attacker to a higher legal standard than the defender in an armed conflict—the Mission creates an environment that encourages non-state actors to circumvent the law, while rendering adherence to the law for nationstates nearly impossible. First, a historical context of the conflict and the applicable law is reviewed, providing a backdrop for the military operation and its causes. This background is followed by a discussion of the legal standards that apply to Operation Cast Lead under IHL. The article then addresses the Goldstone Report’s strengths and weaknesses, to include a critique of select findings of the Mission as they relate to the IHL. Finally, this article concludes with a discussion of the value of the Goldstone Report as a whole, rejecting the politicization of asymmetric warfare (epitomized in the Goldstone Report) as counter-productive to achieving the intent of the IHL: to respect a nation-state’s military necessities while at the same time protecting non-combatants caught between adversaries on the field of battle.

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• Military law review / The Judge Advocate General's School, U.S. Army
• Military law review [Vol. 209, Fall 2011] / The Judge Advocate General's School, U.S. Army