[I]nvestigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during, or after.[1]
With the above mandate from the United Nationsí Human Rights Council, the United Nations Fact Finding Mission on the Gaza Conflict (the Mission) undertook a review of actions by Israeli Defense Forces (IDF); the Palestinian Authority; Hamas, which governs Gaza; and Palestinian armed groups during the IDF military campaign, ìOperation Cast Lead.î[2] Justice Richard Goldstone of South Africa headed the Mission which, in September 2009, submitted its report,[3] commonly referred to as the Goldstone Report.[4]
The 575 page report found fault with all sides. According to the Mission, the Palestinian armed groupsí use of indiscriminate mortar and rocket attacks constituted war crimes that ìmay amount to crimes against humanity.î[5] Similarly, the Gaza security services ìcarried out extrajudicial executions, arbitrary arrest, detention and ill treatment.î[6] But the overwhelming majority of the report, and associated criticism, was directed at the IDF. The report concluded that the IDFís conduct violated a wide range of international norms through deliberate attacks on civilians and civilian objects, use of human shields, unjustified detention, and destruction of property. As a result, the Mission determined that Israel violated its obligations under several international instruments, including the International Covenant in Civil and Political Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of Discrimination Against Women. Perhaps most significantly, the report found that Israel committed grave breaches of the Geneva Convention, which gives rise to individual criminal responsibility.
The report also found ìmajor structural flawsî with ìIsraelís system of investigations and prosecution of serious violation of human rights and humanitarian law,î which render the system ìinconsistent with international standards.î[7] A subsequent statement by Justice Goldstone labeled Israelís efforts to investigate alleged international law violations by the IDF as ìpusillanimousî and those of the Gaza authorities in respect to Palestinian armed groups as a ìcomplete failure.î[8] In that statement, Justice Goldstone reiterated the recommendation from the report that the United Nations Security Council (UNSC) require that both Israel and Gaza authorities ìlaunch appropriate investigations that are independent and in conformity with international standards, into the serious violations of International Humanitarian and International Human Rights Law reported by the Mission and any other serious allegations that might come to its attention.î[9] Absent that, the Goldstone Report recommended that the UNSC refer ìthe situation in Gazaî to the Office of the Prosecutor (OTP) at the International Criminal Court (ICC).[10]
The report sparked considerable controversy, or, more accurately, added to the ongoing controversy which encompasses virtually all aspects of Israel and its relationship, however characterized or labeled, with the Palestinians and in Gaza. Some thought the very origins of the fact finding mission were nothing more than the latest manifestation of institutionalized and internationalized bias against Israel. Indeed Israel declined to cooperate with the Mission from its inception. Others thought the report had not gone far enough, either in its criticism of the IDF, the Gaza authorities, or the Palestinian armed groups. The underlying simmering controversy is such that attempts at reasoned and rationale discussion border on impossible. One of the many unfortunate effects of the discordant status quo is that the Goldstone Report has become a proxy for Israeli-Palestinian controversies more generally, which has stifled discussion.
We propose a more academic endeavor—consideration of the Goldstone Report in the context of its effects on the practical application of international law, divorced from either side of the conflict. We undertake this quixotic task because, in our humble estimation, there are aspects of the Goldstone Report which are problematic for other nations in general and international criminal law in particular, separate and apart from the context of the Israeli-Palestinian conflict.
One such aspect is the Goldstone Reportís ex post facto evaluation of targeting decisions made by the IDF in contravention of a long established rule of war crimes liability. Under this rule, evaluation of targeting decisions requires considering the situation through the perspective of the military commander at the time the judgment at issue was made. Two similar aspects relate to the ICC. First, by calling into question Israelís efforts to investigate alleged IDF violations of the law of armed conflict (LOAC) and invoking the specter of the ICC, the Goldstone Report calls into question the very meaning of complementarity under the Rome Statute. Second, the Palestinian National Authorityís (PNA) attempted to accept ICC jurisdiction following Operation Cast Lead. By not summarily rejecting a request by an entity lacking the requisite dramatis personae of a State, the OTP has created, or certainly not dispelled, the false impression that the events that occurred in Palestinian territory fall within the OTPís discretion, when, under the Rome Statute, they do not. Both these aspects may undermine the long term viability of the ICC.
We conclude that, unchecked, the Goldstone Report may prove an incorrect and dangerous precedent on how inquiries into targeting decisions made during armed conflict are conducted, the determination of any resulting criminal liability, and the parameters of State responsibility to investigate allegations of LOAC violations.
I Ex Post Facto Analysis
The Mission claimed it was ìnot attempting to second-guess with hindsight the decisions of commanders.î[11] But lacking relevant and sufficient information, the Goldstone Report does just that—it applies a retrospective approach to targeting decisions made during armed conflict.
In failing to view the events through the eyes of a ìreasonable military commanderî and at the time the targeting decisions were made, the Goldstone Report errs as a matter of law. More problematic for future military operations, and the military leaders that plan and execute those operations, is the risk that the Goldstone Report will set a flawed precedent which may intellectually corrupt future investigations of targeting decisions during armed conflict. Ultimately, such a flawed precedent risks producing a chilling effect on military commanders responsible for the violent execution of combat missions against belligerent opponents, thereby compromising the effectiveness of such operations as well as any investigations as to the manner by which they were conducted.
For applicable standards of international law, the Mission largely relied on Additional Protocol (AP) I to the Geneva Conventions.[12] †While Israel (like the U.S.) is not a party to AP I, 170 other countries are. Moreover, the portions of AP I regulating the target decision-making process are considered to reflect norms of customary international law.[13] Acknowledging the legitimacy of the law the Mission relied on does not, however, render the Goldstone Report †credible.
The Missionís findings suffered from a flawed methodology by failing to consider the perspective of the military decision-makers and the facts and circumstances available to them at the time of their decisions. One of the origins of, but as discussed later not an excuse for, this flaw was that Israel refused to cooperate with the Mission.
Transforming the obligations related to the application of combat power to an investigation and possible criminal sanction is a complex process involving both subjective and objective elements. An objective standard of assessment is applied, but through the subjective perspective of the military commander whose actions are at issue and based on the information available at the time the decision was made. Critiquing targeting decisions as the Mission did distorted the findings of the Goldstone Report because the assessment was divorced from the military commanderís operational requirements and relies on facts and circumstances that may have only come to light in the aftermath of events.
Unfortunately, the Goldstone Report failed to apply the correct methodology and instead adopted a purely retrospective approach. †This approach manifests itself in a variety of ways. The Mission considered eleven incidents in which Israel purportedly launched direct attacks against civilians, concluding that, ìwith one exception, all cases in which the facts indicate no justifiable military objective pursued by the attack.î[14] The Mission also found no military justification for damage to the industrial infrastructure of Gaza, which included damage to a flour mill. The Mission determined that the nature of what it characterized as a strike against the flour mill ìsuggests that the intention was to disable the factory in terms of its productive capacity.î[15] Based on these ìsuggest[ed] intention[s],î the Missions found a grave breach of the Fourth Geneva Convention, despite the standard for such a violation being ìextensive destructionî which is carried out ìwantonly.î[16] Likewise, in regards to what the Mission characterized as an Israeli attack against a Gaza Waste Water Treatment Plant, the report concluded that the circumstances of the strike ìsuggestî it was both deliberate and premeditated, from which it again labels the attack a war crime similar to that of the flour mill.
Elsewhere the Goldstone Report more overtly substitutes its Mission membersí post hoc judgment for those of military commanders on the ground at the time. For example, despite lacking relevant information concerning the commanderís mission, tactical assessment, threats posed, and weapon systems and support available (or not), in reviewing one attack, the Goldstone Report ìfound it difficult to believe that mortars were the most accurate weapons available at the time.î[17] Labeling the use of mortars ìreckless,î the report suggests that ìhelicopter and fighter jetsî would have been more appropriate without any information as to whether those assets were even available to the military commander on the ground.[18]
Decisions of military commanders must be evaluated based on comparison to a ìreasonable military commander.î Diversity of perspective amongst members of an investigative team like the Mission may provide insights, but it does not change this fundamental standard. The committee established by the OTP at the International Criminal Tribunal for the Former Yugoslavia (ICTY) perhaps best summarizes the rationale underlying this requirement. Charged with assessing the allegations against the North Atlantic Treaty Organization stemming from its bombing campaign against the Federal Republic of Yugoslavia in 1999, the Committee noted:
The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases. It is suggested that the determination of relative values must be that of the "reasonable military commander." Although there will be room for argument in close cases, there will be many cases where reasonable military commanders will agree that the injury to noncombatants or the damage to civilian objects was clearly disproportionate to the military advantage gained.[19]
Yet, the Goldstone Report fails to apply this important condition precedent. Its assertions are impermissibly disconnected from the perspective of the military commanders the report seeks to scrutinize. This mistake is only compounded by the Mission failing to adhere to an established rule of war crimes liability that when subjecting a military commanderís judgment to scrutiny, it is also necessary to consider the circumstances at the time the decision in question was made.
Through application of the subjective and objective test, commanders are not held liable based on a retrospective assessment of facts and circumstances, often referred to as the ìRendulic Rule.î The Rendulic Rule derived from the U.S. war crimes trial of German General Lothar Rendulic following World War II. The prosecution stemmed from General Rendulicís actions while retreating from Finland in 1944. Rendulic believed that Russian troops were pursuing his forces along land and sea routes and as a result, ordered a ìscorched earthî policy to slow the pace of Russian pursuit. In response, the Tribunal held that
There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by exercise of judgment, after giving consideration to all factors and existing possibilities, even though the conclusion reached may have been fault, it cannot be said to be criminal.[20]
Here, the Missionís reliance on an incomplete and retrospective view of the conflict may be explained in part by the lack of Israeli cooperation in the fact finding effort. However, Israelís refusal doesnít justify deviating from the proper analytic methodology for investigating alleged LOAC violations. While the Goldstone Report details the lengths the Mission went to secure Israeli cooperation, the report makes no mention of how the resulting lack of Israeli involvement—and information—impacted the report. Instead, the report claims to have established not only what happened factually, including IDF targeting decisions, but even the mens rea of those involved.[21]
Israelís unwillingness to cooperate[22] degraded the quantity and quality of available information at no fault of the Mission. In response, the Mission should have either drawn inferences and expressly acknowledged that future revelations may potentially invalidate their conclusions or found the available evidence insufficient to reach any conclusion. This leads to the question of whether parties to a conflict, like Israeli, are thus incentivized to just obstruct fact finding efforts viewed as likely to reach unfavorable conclusions about that party. The answer is, or should be, no. But the manner in which the Mission failed to note the significance of the lack of Israeli cooperation while still purporting to establish factual and mens rea conclusions only exacerbates the problem caused by that lack of cooperation. Even worse, it provides a basis of critique of the report and post hoc justification for the lack of cooperation.
To preclude this caustic and unproductive cycle, the Mission should have foregone a flawed methodology and instead highlighted the disabling effect of Israelís lack of cooperation. This, coupled with the information and perspectives the Mission did obtain, would have produced a more credible critique of Israeli conduct—one focused not on the conduct of operational decision-makers, but on the conduct of political decision-makers responsible for the lack of cooperation and information.
II Complementarity And Jurisdictional Implications
Unwilling or Unable
Justice Goldstone labeled Israelís efforts to investigate LOAC violations as ìpusillanimousî and the report recommended that that ìin the absence of good faith investigations that are independent and in conformity with international standards having been undertaken or being under way within six monthsî that the UNSC refer the situation in Gaza to the OTP at the ICC pursuant to Article 13 (b) of the Rome Statute.[23] That label and subsequent recommendation ignore the processes Israel already has in place to investigate allegations of LOAC violations by the IDF and, where appropriate, to prosecute offenders. While a UNSC referral is unlikely, the broader issue of concern to proponents of the ICC is the message that the Goldstone Report conveys to non-State Parties to the Rome Statute on the meaning of complementarity.
Under the Rome Statute, the ICC determines that a case is inadmissible where ì[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecutionÖ.î[24] The Statute clarifies the meaning of unwillingness and inability: ìthe Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.î[25] It is against this standard that Israelís process for investigating and prosecuting LOAC violations must be assessed.
At a minimum, Israelís system is comparable to those of several western States, including the U.S., Canada, the United Kingdom, and Australia. In some ways it may be even more transparent and provide greater victim access. For example, Palestinian residents and non-governmental organizations may file complaints of alleged IDF LOAC violations, and if they do not believe that the IDFís Military Advocate General satisfactorily handled the complaint, they may petition the Israeli court system. By way of comparison, no such comparable rights are afforded in the U.S. Yet, the Goldstone Report claims that Israelís purported unwillingness to open criminal investigations warranted States relying on universal jurisdiction to open their own investigations into alleged grave breaches by the IDF of the Geneva Conventions.[26]
If Israelís system is deemed ìunableî to properly investigate and prosecute such that the ICC may potentially have jurisdiction, then it is unclear which Statesí systems would pass muster. Such a finding contradicts the accepted meaning of complementarity and the limited jurisdiction of the ICC. It also sends an ambiguous message to the major non-State Parties to the Rome Statutes.
Some argue that Israelís unwillingness to fully and fairly apply what is otherwise a legitimate investigative and judicial system, rather than any structural inability, triggers ICC jurisdiction. Israel claims to have ìalready referred 36 separate incidents [from Operation Cast Lead] for criminal investigation.î[27] The fact that only a small number of the investigations have led to indictment and conviction is offered as proof that, regardless of Israelís process, the lack of results equates to an unwillingness to prosecute.[28]
Such a view is problematic for two reasons. First, it ignores the wide range of ways in which a State may hold its service members accountable for violating the LOAC. For example, Israel announced that it disciplined (while not prosecuting) two IDF Commanders for ordering artillery fire into Gaza without proper authorization.[29] Another IDF commander was disciplined for allowing his troops to use a Palestinian civilian as a human shield.[30] Second, an empirical focus can easily become problematic. If the relatively small number of prosecutions is not sufficient, how many would be? Ten? Twenty? One-hundred? One of the IDF soldiers convicted of offenses committed during Operation Cast Lead received seven and a half months in prison for stealing $400 from a Palestinian.[31] For those who feel the sentence was too lenient, what should the punishment have been? Two years? Five years? Who should decide? This is not to say that this small number of prosecutions or the sentences imposed, in and of themselves, demonstrate the efficacy of the Israeli system, but rather that such a determination should not be based on purely quantitative methodology.[32]
By calling into question Israelís process for investigating and prosecuting IDF LOAC violations, the Goldstone Report has rendered uncertain the meaning of complementarity under the Rome Statute and the jurisdictional mandate of the ICC. This uncertainty will, in turn, negatively influence the attitude of major non-State Parties against joining the ICC. These States, including China, Russia, India, and the United States, have less robust domestic mechanisms than Israelís to investigate and respond appropriately to LOAC violations. All these States, like Israel, face the prospect of armed conflict against asymmetric threats, amorphous insurgents who utilize the civilian population and infrastructures as shields. The derivative message from the Goldstone Report to non-States Parties to the Rome Statute is that joining the ICC may more broadly expose their service members to ICC jurisdiction than those States may envision—or will tolerate. And without the support of these major non-States Parties to the Rome Statute, the long term viability of the ICC is unclear.
Jurisdictional Limitations On The ICC Prosecutor
On January 21, 2009, three days after the end of Operation Cast Lead, the PNA submitted a declaration to the ICC under article 12(3) of the Rome Statute, which allows a State which is not a party to the Statute to accept ICC jurisdiction.[33] Since then, there have been a host of submissions to the court on whether that declaration meets statutory requirements. Assuming, arguendo, that a sufficient factual basis to justify an investigation exists, to do so would be an improper usurpation of a function acknowledged by State Parties to be within the exclusive competence of the UNSC.[34] Based on the express terms of the Rome Statute, the OTP lacks competence to even consider asserting jurisdiction over events in ìPalestinian territory.î[35] Accordingly, even opening an investigation into alleged violations of the Statute occurring in a context outside the ICCís consent based jurisdiction not only exceeds the jurisdictional limits of Article 12, but also intrudes upon a function vested by the state parties in the UNSC.
Article 12 of the Statute establishes clear limitations on the OTPís authority to initiate an investigation into alleged violations of the Statute. Because the PNA lacks the requisite dramatis personae of a State, the events that have occurred in Palestinian territory do not fall within this discretion. Yet, the fact that the OTP did not summarily reject the request by the PNA to investigate events that occurred in Gaza creates the inference that there is some factual basis to conclude that violations of international law occurred.[36] This, however, is insufficient to trigger an exercise of the prosecutorial discretion afforded the OTP.
The State Parties to the Rome Statute were aware that offenses defined in the Statute might occur in situations falling outside the consent-based jurisdiction of the court. Yet, their solution to the concern that this would contribute to impunity for serious violations of international law did not vest the OTP with the discretion to effectively expand the courtís jurisdiction. Instead, they included within the Statute an alternate mechanism for bringing such situations before the ICC.
Article 13(b) of the Rome Statute permits the ICC to exercise jurisdiction in situations ìin which one or more of such crimes appear[ing] to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.[37] This provision reflects the clear intent of the State Parties to make the UNSC solely competent to place before the ICC allegations of violations of the Statute that are otherwise barred by the nationality and territoriality limitations on jurisdiction established by Article 12.
Recognizing the UNSCís competence to refer such situations to the ICC reflected an evolution of a process that began with the creation of the ICTY.[38] The UNSC created the ICTY pursuant to its Chapter VII authority to authorize measures for the restoration and maintenance of international peace and security.[39] This legal basis was subsequently validated by the ICTY Appeals Chamber in Prosecutor v. Tadic.[40] As evidenced by the creation of the ICTY, at the time of the drafting of the Rome Statute, it was well accepted that Chapter VII of the UN Charter authorized the UNSC to direct the creation of ad hoc tribunals to address allegations of serious violations of international law in the context of armed conflicts.
Including within the Rome Statute a provision which permits the court to exercise jurisdiction over situations referred by the UNSC acting pursuant to its Chapter VII enforcement authority was considered an efficient alternative to the periodic creation of future ad hoc tribunals.[41] It reflected the determination that impunity for serious violations of international law could in the future, as it had in the past, be considered a threat to international peace and security, and that efficient investigation and prosecution of such crimes could help restore peace and security.[42] It also reflected a compromise between a purely consent-based jurisdiction paradigm and a cause-based jurisdiction paradigm.[43]
This compromise, however, involved a delicate balance between the desire to prevent impunity for the most serious violations of international law, the authority of the OTP, and the protection of state sovereignty.[44] Certainly, if preventing impunity were the only concern of State Parties, they could have vested the OTP with authority to investigate and refer to the ICC not only situations falling within the consent-based jurisdiction of the Rome Statute, but any other situation that the OTP believed justified such action. But such an approach would unacceptably intrude into the sovereignty of those States choosing not to submit to ICC jurisdiction. Instead, the State Parties chose to place two significant limits on the ability to extend jurisdiction beyond Article 12 consent limitations: (1) The situation (to include the failure to investigate) must constitute a threat to international peace and security; and (2) Only the UNSC could authorize such an extension.[45] Vesting the UNSC with this authority was, therefore, adopted by the States Parties to balance the sovereign interests of states with the need to extend the courtís jurisdiction in limited situations. [46] By linking such an extension to the collective security mechanism of the United Nations, the Statute vitiates any legitimate objection to non-consensual jurisdiction.
It is, therefore, clear that State Parties to the Rome Statute did not simply desire to extend the ICCís jurisdiction to non-parties. Instead, they acknowledged the exclusive authority of the UNSC to impose non-consensual jurisdiction on States as an enforcement measure pursuant to Chapter VII of the UN Charter. The significance of this link between non-consensual jurisdiction and enforcement authority of the UNSC was so profound that even a proposal to authorize Security Council referral pursuant to Chapter VI of the UN Charter was rejected because there is no enforcement action authority derived from Chapter IV.[47]
Thus, it is clear that only the UNSC acting pursuant to the authority granted by the community of nations through Chapter VII of the UN Charter may refer a situation to the ICC that is otherwise beyond the Rome Statuteís consent-based jurisdictional limits. Such a decision involves extremely complex, delicate matters of international law, diplomacy, and state sovereignty.[48] The State Parties concluded that only the UNSC—not the OTP—possessed the requisite competence to address these competing concerns. By undermining this exclusive authority, the OTPís failure to reject the PNAís declaration of consent has the potential to destabilize a complex and delicate process established by the community of nations.
Conclusion
The Israel-Palestine conflict remains fraught with emotion. The Goldstone Report has only exacerbated this difficulty. Even worse, the Goldstone Reportís flawed methodology undermines long standing practice for evaluating targeting decisions, determining criminal liability, and how States meet their obligation to hold accountable those who violate the LOAC. Carrying the imprimatur of the U.N., the Goldstone Report represents an international siren song, luring the unwary and zealots alike. Only if the international community is able to recognize and acknowledge the Goldstoneís Report flawed methodology can the reportís potentially harmful effects on international criminal law and the ICC be avoided.
* Lieutenant Colonel, U.S. Army Judge Advocate Generalís Corps. Presently serving as the Chief of the International Law Branch, Office of The Judge Advocate General, Washington, D.C.. The views expressed in this article are those of the author and not The Judge Advocate Generalís Corps, the U.S. Army, or the Department of Defense.
Ü Associate Professor of Law, South Texas College of Law. Formerly Special Assistant for Law of War Matters and Chief of the Law of War Branch, Office of The Judge Advocate General, United States Army; Chief of International Law, U.S. Army Europe; Professor of International and National Security Law, U.S. Army Judge Advocate General's School.
[1] Human Rights Council, U.N. Doc. A/HRC/S-9/L.1 (Jan. 12, 2009).
[2] Cast Lead was the Israeli Defense Force name for its military operations in Gaza, ostensibly against the Palestinian group Hamas for rocket attacks against Israel. The number of fatal casualties as a result of Operation Cast Lead varies between non-governmental organizations, which report between 1, 387 and 1,417 fatalities; Gaza authorities, which report 1,444; and the Government of Israel, which lists 1,166. Human Rights Council, Fact Finding Mission on the Gaza Conflict, Human Rights in Palestine and other Occupied Arab Territories, , ∂ 30, A/HRC/12/48, (Sept. 15, 2009) [hereinafter Goldstone Report]. There was also considerable damage to the infrastructure of Gaza, but how one characterizes the damage is yet another area of controversy.
[3] Goldstone Report, supra note 2.
[4] Justice Goldstone formerly served on the Constitutional Court of South Africa and as a Prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda. He was joined on the mission by Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science; Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special Representative of the Secretary-General on the situation of human rights defenders; and Colonel Desmond Travers, who formerly served in Irelandís Defence Forces and as a member of the Board of Directors of the Institute for International Criminal Investigations.
[5] Goldstone Report, supra note 2, at ∂ 1748.
[6] Id. at ∂ 1752.
[7] Id. at ∂ 1756.
[8] Richard Goldstone, Statement on behalf of the Members of the United Nations Fact Finding Mission on the Gaza Conflict before the Human Rights Council12th Session (Sept. 29, 2009).
[9] Goldstone Report, supra note 2, at ∂ 1766(1)(a).
[10] Id. at ∂ 1766(3).
[11] Id. at ∂ 588.
[12] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I), June 8, 1977, 1125 U.N.T.S. 3.
[13] See Mike Matheson, ìAdditional Protocol I as Expressions of Customary International Lawî 2 Am. U.J. Intíl L. & Políy 415 (1987) (describing the customary international law status of portions of AP I). Matheson, a former deputy legal adviser at the Department of State, claimed that over half of AP Iís 91 substantive articles, including several on targeting and conduct of attacks, reflected customary international law.
[14] Goldstone Report, supra note 2, at ∂ 43.
[15] Id. at ∂ 50.
[16] In terms of property, a grave breach of the Fourth Geneva Conventions requires ìextensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.î Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature art. 147, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[17] Goldstone Report, supra note 2, at ∂ 696.
[18] Id. at ∂∂ 696-697.
[19] †Intíl Criminal Tribunal for the Former Yugo., Comm. Established to Review the NATO Bombing Campaign Against the Fed. Republic of Yugo., Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, (Jun. 13, 2000) available at http://www.icty.org/sid/10052#IVassessment. Ironically, the Goldstone Report includes this quote despite the Missionís questionable application of its guidance. See Goldstone Report, supra note 2, at ∂∂ 50, 693.
[20] United States v. Wilhelm List, XI Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 1296 (1950).
[21] Goldstone Report, supra note 2, at ∂ 25.
[22] Israelís refusal to cooperate seems to stem in large part from its views of the origins of the Missionís mandate, the Human Rights Council (HRC). While Israel may dispute the legitimacy of this fact finding commission, of note, article 90 of AP I provides for the creation of fact finding commissions. While the Mission here did not meet the requirements of such a commission, Article 90 is an express acknowledgment that commissions have potential competence to investigate situations arising from armed conflict. One wonders if Israelís response may have been different if the origins of the Mission were LOAC and not human rights based.
[23] Goldstone Report, supra note 2, at ∂ 1766(3).
[24] Rome Statute of the International Criminal Court, art. 17, July 17, 1998, 2187 U.N.T.S. 90.
[25] Id. at art. 17(3).
[26] Goldstone Report, supra note 2, at ∂ 127. Interestingly, a Spanish court, acting under its then universal jurisdiction statute, closed an investigation of a 2002 Israeli airstrike in Gaza because it found Israel able to fairly investigate allegations of IDF LOAC violations. Of note, the Israeli investigation did not result in any prosecutions.
[27] The State of Israel, Gaza Operation Investigations: An Update 35 (2010) [hereinafter Gaza Operation Investigations].
[28] Gaza Operations Investigations, supra note 27, at 36. The IDF court-martialed an IDF soldier for stealing $400 from a Palestinian during Operation Cast Lead. Gaza Operations Investigations, supra note 27, at n.112. Another investigation led to the conviction of two IDF Sergeants for using a Palestinian boy as a human shield, though the sentence imposed (rank demotion and suspended jail sentence) has drawn criticism. See http://www.hrw.org/en/news/2010/11/26/israel-soldiers-punishment-using-boy-human-shield-inadequate. Another Israeli investigation resulted in the indictment of an IDF sergeant for manslaughter stemming from his alleged role in the death of two Palestinian woman purportedly holding white flags. See http://www.huffingtonpost.com/2010/07/06/gaza-war-soldier-faces-ma_n_636404.html
[29] Howard, Schneider, Israel Punishes 2 Officers For Attack Order To Fire At Gaza Community Exceeded Authority, Report says, Wash. Post, Feb. 2, 2010, at A9.
[30] Matti Friedman, Gaza War Soldier Faces Manslaughter Charge, Israeli Army Says, The Huffington Post (2010), http://www.huffingtonpost.com/2010/07/06/gaza-war-soldier-faces-ma_n_636404.html. The human shield, a Palestinian boy, was not injured. This is the same incident which resulted in the conviction of the two IDF sergeants referenced in note 28.
[31] Gaza Operations Investigations, supra note 27, at n.112.
[32] An interesting juxtaposition to Israelís long standing process and where the ìunwilling or unableî line is found in comparison is Sudanís creation of the Special Criminal Court on the Events in Darfur one day after the Prosecutor to the ICC announced the issuance of arrest warrants for, among others, the President of Sudan.
[33] Office of the Prosecutor, Situation in Palestine: Summary of submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements (May 3, 2010).
[34] Rome Statute, supra note 24, at art. 13 (limiting an exercise of jurisdiction by the court to allegations made by the ICC Prosecutor in accordance with the treatyís territorial and/or nationality limitations, or to situations referred to the court by the UNSC).
[35] The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
Id.
[36] According to some reports, the OTP had previously agreed to investigate alleged war crimes stemming from armed conflict in Gaza even before Operation Cast Lead. See, e.g., Sebastian Rotella, International Criminal Court to consider Gaza investigation The Palestinian Authority and others want the court to investigate alleged war crimes committed during the recent battle with Israel, LA Times, Feb. 5, 2009, available at http://articles.latimes.com/2009/feb/05/world/fg-court-palestinians5 (quoting Luis Moreno-Ocampo, chief prosecutor for the ICC, as stating that he would consider an investigation into actions taken in Gaza).
[37] Rome Statue, supra note 24, at art. 13(b).
[38] See Lionel Yee, The International Criminal Court and the Security Council: Articles 13(b) and 16, in The International Criminal Court: The Making of the Rome Statute 146 (Roy S. Lee ed., 1999).
[39] Id. at 147.
[40] Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, ∂∂ 27–29 (Oct. 2, 1995).
[41] Yee, supra note 38, at 148; see also Luigi Condorelli & Santiago Villalpando, Referral and Deferral by the Security Council, in 1 The Rome Statute of the International Criminal Court 627-37 (Antonio Cassese ed., 2002).
[42] Yee, supra note 38, at 147.
[43] See Condorelli & Villalpando, supra n.41, at 627–29.
[44] Id. at 629–34.
[45] Id. at 41, 629-34.
[46] Id. at 627–29.
[47] Yee, supra note 38, at 148–49.
[48] See generally Tadic, supra note 40; see also Condorelli & Villalpando, supra note 41, at 627–34.
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