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Goldstone, Gaza and (Dis)Proportionality: Three Strikes

JURIST Guest Columnists Laurie Blank of Emory Law's International Humanitarian Law Clinic and Gregory Gordon of the University of North Dakota School of Law say that the most glaring failure of the controversial Goldstone Commission Report on the Gaza conflict has gone unnoticed....

The Goldstone Commission Report on the January 2009 Israel-Palestinian conflict in Gaza — which comes before the United Nations today, November 4, 2009 — has been accused of failure on various levels. Many commentators argue that the Report fails the Israeli-Palestinian peace process. Some say it reflects a failure to understand the deeper historical realities of the Israeli-Palestinian conflict. Still others say it fails the originally conceived purpose of the United Nations Human Rights Council and fails the search for objective truth. Its most glaring failure, though, has gone unnoticed. The Report fails the law.

It does so by striking out in applying the law in three key areas. Strike One: the Report incorrectly claims Israel disproportionately attacked civilians. Strike Two: the Report unjustly accuses Israel of a disproportionate response to Hamas's attacks. Strike Three: the Report treats Israel and Hamas disproportionately by holding them to different standards.

Strike One

Jus in bello is the law governing conduct during war. One of its key principles is proportionality, which requires military personnel to take precautions in targeting the enemy to ensure that the expected civilian losses are not excessive compared to the anticipated military advantage. The commander's perspective at the time of the attack is the central focus. The law assesses whether his actions were reasonable given the information he had access to, taking into account the "fog of war." Proportionality is not measured after the fact by looking at actual civilian casualties or actual military advantages. If it were, no military could ever engage in any operations.

The Report turns proportionality's bedrock premise on its head. It relies substantively on information gathered after the fact and discounts contemporaneous Israeli intentions or actions and the surrounding circumstances. The Report also undermines its own legitimacy by automatically verifying one side's statements and impugning the other's. Israel's real-time information consists of mere "allegations," but retrospective information collected months later in Gaza consists of definitive "statements." Israel admittedly did not cooperate (given the commission's biased conception), but that cannot justify reliance on the wrong information.

Strike Two

Jus ad bellum is the law governing decisions to go to war. Article 2(4) of the U.N. Charter forbids the use of force without Security Council enforcement (Article 2(7)). One exception: Article 51 preserves the right to use force in self-defense. Jus ad bellum mandates that any act in self-defense constitute a proportionate response, meaning a necessary and reasonable means to counter the attack and eliminate future threats.

The Report confuses jus in bello proportionality (as explained above) with this jus ad bellum requirement of a proportionate response. Israel acted legitimately in self-defense to destroy Hamas's tunnels and rocket launchers. Hamas indiscriminately fired thousands of rockets at Israeli civilians for eight years. And yet, the Report does not even mention Article 51. More egregiously, it uses the incorrect assessment that particular Israeli attacks violated jus in bello proportionality to unfairly package Operation Cast Lead as disproportionate overall, a clear misapplication of jus in bello principles in a jus ad bellum framework.

Strike Three

The Report's (unfounded) legal conclusions disproportionately hold Israel and Hamas to different standards. It states unequivocally (but without factual substantiation) that Israeli forces committed grave breaches of the Geneva Conventions, such as willful killing and torture.

Article 85 of Additional Protocol I states that "making the civilian population or individual civilians the object of attack" and launching indiscriminate attacks—the very crimes Hamas committed, according to the Report—are indeed grave breaches. But the Report never considers that Palestinian armed groups committed grave breaches. Accusing Israel of "grave breaches" while failing to similarly identify Hamas' violations exposes the commission's bias to the core.

This uneven treatment pervades the entire report. For example, Hamas and Israel both had obligations to protect civilians in Gaza. The Report's single-minded focus on Israel, however, leads to absurd statements regarding Hamas's breach of those obligations when it used civilian buildings as command centers, munitions storage and rocket launch sites. While quick to condemn Israel flat out for violations, the Report merely suggests that Hamas's actions "would constitute" legal violations.

Reading the Report in an uncritical vacuum suggests that Israel abrogated its obligations under the laws of war. In reality, the main failure lies in the Report itself. The Report fails the law. Why does this matter? Because in maintaining a delicate balance between destruction of enemy capabilities and protection of innocent civilians, the law reinforces our basic dignity and humanity in the face of the horrors of war. We cannot afford to abandon it.

Laurie R. Blank is the Acting Director of Emory Law's International Humanitarian Law Clinic. Gregory S. Gordon is an assistant professor at the University of North Dakota School of Law and Director of the UND Center for Human Rights and Genocide Studies.

November 04, 2009

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Strike 1
You claim that Goldstone "fails the law" but then what you attack is the credibility of the facts he found! Please note that Goldstone did not file a court conviction but a report calling for that a court proceeding be initiated in the first place!

Strike 2
Goldstone DOES acknowledge Isreal's right to self-defense. He simply explains why certain acts of the IDF are not an exercise of that right.

Strike 3
The legal standards by which Goldstone measures the acts of Hamas and those of the IDF are the same. He merely comes to different conclusions as to in how far those standards where violated by each side.

November 04, 2009  

Strike #4
Taking the fact alone that Israel used not only it's military might, but that of a fully willing United States of America, to assault a mostly unarmed civilian population in a penned up shooting gallery is obvious GENOCIDE without a question of a doubt

Strike #4
Shooting rockets into "Occupied" territory ( where the Jew's should not be at all anyway)cannot be a war crime. If your shooting rockets into Israel proper then that is a different story. So therefore shooting rockets into YOUR OWN land is not a crime.

Strike #5
If Israel would pull back within it's pre 1967 borders, erect it's seperation wall around those borders, stay inside and mind their own business, the rest of the known world would be much better off.

I find it amazing that Goldstone's report even found Israel at fault in any way. Zionists think they are always right and the whole world belongs to them anyway. The rest of us are just "Golum".

November 05, 2009  

The Goldstone report avoided the question of jus ad bellum and hence did not look into the question of self-defense and Article 51 UN Charter. I think this was a fatal error. Goldstone should have had the guts to clearly come out and say that although Israel has the right of self-defense (as all states do) the scale of force it used in operation Cast Lead grossly exceeded that right. In an attempt at justifying Israel’s actions, Laurie Blank and Gregory Gordon write that for eight years Hamas had fired rockets into Israel. Yet in the same period of time they fail to mention that the Israeli military killed over 5,000 Palestinians and killed a further 1,300 Palestinians (mostly poor stateless refugees who have no where to flee to) last January including 200 children. Surely, this is grossly disproportionate to the rockets fired prior to the initiation of Cast Lead which led to few if any causalities? Then there is the hideous blockade which the authors of the Goldstone report to their credit dealt with at length. Of course, Blank and Gordon don’t mention the blockade or any of the substantive points in the report either. Their op-ed reads like a cheap Israeli Foreign Ministry press release. They should be ashamed to have their names associated with it.

November 05, 2009  

RESPONSE to Strike #4: The "mostly unarmed civilian population" you are referring to FREELY ELECTED Hamas as their governing body, an internationally recognized terrorist network, who encouraged Palestinians to act as human shields during Operation Cast Lead.

Thereafter, Hamas--whose charter calls for the complete destruction of the state of Israel--launched tens of thousands of rocket attacks in heavily populated civilian areas of southern Israel, despite the fact that Israel unilaterally withdrew from Gaza in 2005.

If Israel has been committing "genocide" against Palestinians, as you claim, how is it that 700,000 Palestinians refugees in 1948 have grown to more than 3,500,000 in the "occupied" territories today?

RESPONSE to Strike #5: Sderot, Ashkelon and the Negev, where Hamas launched tens upon tens of thousands of rockets over the last 8 years IS in Israel proper.

RESPONSE to Strike #6: If nine Arab countries had not attacked Israel in 1967, and Palestinian terrorists had not butchered more than 1000 Israelis with their homocide bombings during the second intifada, there wouldn't have been any "occupied" territories, as you call it, and the security fence would have never been erected in the first place.

Finally, it's "GOYIM" not "GOLUM," you moron.

November 06, 2009  

I am really surprised how quickly this article finds "Israel acted legitimately in self-defense."

30 of the most highly respected international lawyers have already in January examined this plain assertion closely and come to a very different conclusion.

November 07, 2009  

None of this discussion is necessary, since Goldstone only investigated the effects of what Israelis call the "Dahiya doctrine".

In case people don't know what that means, lets remember the words of the Israel's Northern Commander in 2006, Gadi Eisenkot: "We will apply disproportionate force ... the Palestinians in Gaza are all Khaled Mashaal, the Lebanese are all Nasrallah, and the Iranians are all Ahmadinejad". Far from being an anti-semitic canard, this is how the Israeli establishment (both politicians and military) actually behave.

Incidentally, if you hold voters responsible for the actions of their government, then every Israeli is a war-criminal. Given the squeals when they face prosecution (just for their own individual actions, not as communal punishment!) then we can be pretty sure they're guilty as charged.

Worth mentioning is that all Islamophobes (almost however you describe them) seem to support Israel. Far from easing religious tensions, Israel and its supporters seem intent on inciting another religion based mass killing. So much for "lessons of the Holocaust"!

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