Peter Berkowitz on Goldstone, the flotilla incident and more (WASHINGTON POST) By Jennifer Rubin / Blog 04/13/12)
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Peter Berkowitz, a senior fellow at the Hoover Institution and holder
of a PhD in political science and a J.D. from Yale, is out with a new
book, “Israel and the Struggle Over the International Laws of War.”
The slim volume does not lack intellectual heft. It is must-reading
for those interested in international law, Israel and multilateral
international bodies. Peter agreed to answer a number of questions
about the book. The depth and thoughtfulness of his answers are
representative of his body of work, which ranges from political
philosophy to Zionism.
How does compliance with international law comport with America’s
system of constitutional democracy?
It depends. International law includes a variety of bodies of law
dealing with, among other things, trade, transportation,
communication, the environment and human rights. The international
laws of war form one such body.
One source of the international laws of war is the long-standing or
customary practice of nations based on their sense of legal
obligation. Customary international law is consistent with
constitutional democracy because it is grounded in the consent of
states, in their decision to follow a practice not merely out of
convenience or courtesy but out of their recognition of its legally
Much of the international laws of war has been codified in treaties,
most notably the four Geneva Conventions. When, in accordance with
Article II, Section 2 of the Constitution, the President and two-
thirds of the Senate enter into treaties governing the laws of war —
as in the case of the Geneva Conventions — America is properly bound.
However, two large problems have arisen concerning the democratic
legitimacy of the international laws of war. First, lawyers,
scholars, and diplomats increasingly argue as if speculations derived
from moral philosophy and political theory about what the law ought
to be constitute a binding part of customary international law.
Second, lawyers, scholars, and diplomats increasingly seek to shift
responsibility for interpreting the obligations of states under the
international laws of war from states themselves — where the
international laws of war place it — to entities that are not only
unelected and unrepresentative but in many cases boast officers and
judges who represent authoritarian states.
You write that international laws are “a vital component of a freer,
more peaceful and more prosperous world order.” But does Israel’s
experience with Goldstone and the flotilla suggest otherwise?
Israel’s bitter experience with the Goldstone Report and, in the end,
better experience with the Gaza flotilla controversy — both of which
concerned Israel’s operations against Hamas, which is the ruling
authority in Gaza and which is sworn to Israel’s destruction —
involved the attempt by influential actors on the international stage
to criminalize Israel’s inherent right of self-defense. All liberal
democracies must combat this abuse and corruption of the
international laws of war.
At their origins and properly conceived today, the international laws
of war seek to balance the legitimate claims of military necessity
and humanitarian responsibility. Liberal democracies such as Israel
and the United States, which are engaged in a long struggle against
transnational terrorism and depend on their armed forces on a daily
basis to defend their ways of life, have a special interest in the
struggle over the international laws of war. That’s in no small
measure because soldiers and officers imbued with the principles of
freedom and equality justly take pride in honoring laws of war
rightly understood. The laws of war rightly understood take seriously
both combatants’ obligation to defend their nation and their
obligation to minimize harm to noncombatants.
Is the proper application of international law possible without a
majority of liberal democracies in the international community?
Yes and no. It is certainly possible for the liberal democracies such
as the United States and Israel to operate in accordance with the
international laws of war, in part because the international laws of
war accord states with competent judicial systems considerable
responsibility for investigating and punishing war crimes. However,
to the extent that the international laws of war are coopted by
authoritarian states and transnational elites with their own
political agendas, liberal democracies will be compelled to assume
even greater responsibility for interpreting, upholding, and
defending the international laws of war. The recognition of laws of
war that are binding on all nations should not be confused with the
obligation to vest in some mythical international community the
authority for defining and punishing violations of the laws of war.
The Goldstone Report got the facts and the law wrong. The report was
so contrary to international law (e.g., in failing to defer to
national sovereignty and law) one has to wonder how Goldstone got so
far off track. Was this pure bias?
I don’t know what motivated Goldstone or the other members of his
mission — London School of Economics professor Christine Chinkin;
Colonel Desmond Travers, a former officer in Ireland’s Defense
Forces; and Supreme Court of Pakistan advocate Hina Jilani. But when
intelligent people go wildly astray, when they sign their names to a
document that twists the facts, misapplies the law, and indeed
proceeds on the basis of a mandate lacking proper legal foundations,
and all their errors operate to demonize one side, then bias becomes
a plausible hypothesis.
You discuss and debunk the notion that Israel is “occupying” Gaza. Is
Hamas an occupying power, and if so what recourse is there?
Hamas shouldn’t be considered an occupying power in Gaza, though its
actual status is unclear. In January 2006 elections, it won a
majority of seats in the Palestinian Authority parliament. And in
June 2007, Hamas violently seized control of Gaza, expelling its
rival Fatah from the government. While not recognized by
international law as head of a sovereign state, Hamas, unfortunately,
appears to enjoy the support of the Palestinians of Gaza. In these
circumstances, friends of freedom should join with Israel in ensuring
the humanitarian needs of the people of the Gaza Strip are met while
isolating Hamas, which refuses to recognize Israel, renounce terror,
and abide by agreements with Israel into which the Palestinian
Authority has entered.
In its Presidential Statement of May 31, 2009, did the U.N. Security
Council violate the international laws of war by failing to recognize
that Israel had the primary right and responsibility to investigate
the incident itself?
The failure of the Presidential Statement to recognize that states
accused of war crimes have the right and primary responsibility to
undertake investigations, conducts trials, and mete out punishments
is not itself a violation of the international laws of war. However,
it betrays a determination to effectively rewrite the international
laws of war by shifting responsibility from states to international
Actually, in the case of the Gaza flotilla, the UN acted with greater
respect for Israel’s rights and responsibilities. In the case of the
Goldstone Report, the UN General Assembly, through its subsidiary
organ, the notorious Human Rights Council, abridged Israel’s rights
and interfered with its responsibilities under the international laws
of war by launching an investigation before Israel could have been
expected to complete more than the preliminary stages of its own. In
contrast, in the case of the Gaza flotilla the UN waited for Israel
to complete its investigation and drew on Israel’s analysis and
findings before it issued its own report. That was proper. The Palmer
report found that Israel’s blockade of Gaza was clearly legal while
concluding, on a matter over which reasonable people could differ,
that in the case of the Mavi Marmara Israel used excessive force in
defending its legal blockade.
Nevertheless, the enemies of Israel, who form a powerful voting bloc
at the UN, have an interest in eroding the claims of national
sovereignty and limiting the rights and responsibilities of states in
the event of war crimes allegations.
And progressive opinion wants more judicial power to be vested in
international entities to investigate and punish war crimes on the
supposition that they are more impartial and reliable. But that
supposition is dubious. The transnational elites that would stand in
judgment have interests and ambitions of their own; they lack
democratic accountability and national security responsibility; and
they operate in many cases without agreed upon authority for
adjudicating disputes and enforcing the law.
In our imperfect world, when a liberal democracy is accused of
committing a war crime, the judicial system of that liberal democracy
is, all things considered and according to the international laws of
war rightly understood, the best forum for vindicating the
international laws of war. (© 2010 The Washington Post Company
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