September 26, 2010
The controversy over the “Report of the United Nations Fact Finding Mission on the Gaza Conflict” (September 15, 2009), more commonly known as the Goldstone Report, seems to have died down. But its larger significance has yet to be appreciated. For the most part, the controversy has swirled around the reliability of the Goldstone Report’s factual findings and the validity of its legal findings concerning Operation Cast Lead, which Israel launched on December 27, 2008, and concluded on January 18, 2009. But another and more far-reaching issue, which should be of great significance to those who take seriously the claims of international law to govern the conduct of war, has scarcely been noticed. And that pertains to the disregarding of fundamental norms and principles of international law by the United Nations Human Rights Council (hrc), which authorized the Goldstone Mission; by the Mission members, who produced the Goldstone Report; and by the hrc and the United Nations General Assembly (of which the hrc is a subsidiary organ), which endorsed the report’s recommendations. Their conduct combines an exaltation of, and disrespect for, international law. It is driven by an ambition to shift authority over critical judgments about the conduct of war from states to international institutions. Among the most serious political consequences of this shift is the impairment of the ability of liberal democracies to deal lawfully and effectively with the complex and multifarious threats presented by transnational terrorists.
At its most incendiary, the Goldstone Report purported to find solid evidence that Israel had committed crimes against humanity.
Notwithstanding a veneer of equal interest in the unlawful conduct of both Israel and the Palestinians, the Goldstone Report — informally named after the head of the un Mission, Richard Goldstone, former judge of the Constitutional Court of South Africa and former prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda — overwhelmingly focused on allegations that in Operation Cast Lead Israel committed war crimes and crimes against humanity. The purpose of Israel’s three-week operation was to substantially reduce the rocket and mortar fire that Hamas, long recognized by the United States and the European Union as a terrorist organization, had been unlawfully raining down upon civilian targets in southern Israel for eight years, and which Hamas had intensified after its bloody takeover of Gaza from the Palestinian Authority in 2007. While the Goldstone Report indicated that here and there Palestinian armed groups may have committed war crimes, it purported to find substantial evidence — based primarily on the testimony of Palestinians either affiliated with, or subject to, Hamas — that Israel had repeatedly violated international law by using disproportionate force. At its most incendiary, the Goldstone Report purported to find solid evidence that Israel had committed crimes against humanity — among the gravest breaches of international law — by implementing a deliberate policy of terrorizing Palestinian civilians, both by targeting civilian noncombatants and destroying civilian infrastructure.
Israel has provided three major responses to the Goldstone Report. The most recent came from the Intelligence and Terrorism Information Center (itic), an Israeli ngo that works closely with the Israel Defense Forces (idf). In March 2010, the itic published and posted online a 349-page study, “Hamas and the Terrorist Threat from the Gaza Strip: The Main Findings of the Goldstone Report Versus the Factual Findings.”2 Like the two previously published accounts by the Israeli government of the country’s continuing investigations of allegations of unlawful conduct committed by its armed forces during the three weeks of Operation Cast Lead — “The Operation in Gaza: Factual and Legal Aspects”3 (July 29, 2009), and “Gaza Operation Investigations: An Update”4 (January 29, 2010) — it garnered next to no attention in the press, from international human rights organizations, from the hrc, or from the General Assembly. Nor have the Goldstone Report’s champions in the international human rights community or Judge Goldstone and his colleagues dealt seriously with the incisive criticisms published by scholars and journalists concerning both the report’s factual findings5 and legal findings.6
But the deeper issue for international law concerns the right and the responsibility of states to make lawful judgments, under the international law of armed conflict, about the conduct of war, including the crucial judgments in asymmetric warfare concerning what constitutes a proportional use of force. That issue cannot be resolved by showing that the Goldstone Report’s findings of fact about the Gaza operation are severely biased, or by demonstrating that the report misapplied or misunderstood the test for determining whether Israel exercised force in a proportional manner, although such showings and demonstrations are highly relevant. Nor can it be resolved by bringing to light how the Goldstone Mission itself — as conceived and authorized by the Human Rights Council, carried out by Goldstone and his colleagues, and endorsed by the United Nations General Assembly — disregarded basic norms and principles of international law, even though this multifarious disregard of law is of great significance. In the end, whether nation-states or international authorities should have primary responsibility for enforcing the lawful conduct of war turns on conflicting opinions about armed conflict, politics, and justice. Even those many conservatives and progressives who share a commitment to the freedom and dignity of the individual may come to different conclusions grounded in conflicting opinions about the best means for securing individual rights while maintaining international order.
Authoritative sources in international law assign primary responsibility for judgments about whether war has been conducted in accordance with the law of armed conflict to the judicial and other relevant organs of nation-states. That assignment is rooted in the larger liberal tradition’s teaching that nation-states — particularly those based on the consent of the governed and devoted to securing individual rights — are the best and most legitimate means of securing peace, exercising authority over the individual, and preserving political freedom. That teaching is bound up with the view that states are likely to be more sober in assessing the actions of other states than international organizations because states must bear the burden of any proposed reform or rule. In contrast, the Goldstone Report and its supporters appear to be animated by the conviction that judgments about the lawful conduct of war are best and primarily vindicated by international institutions, because of their superior objectivity, impartiality, and expertise. And they have shown themselves willing to disregard international law as it is in order to remake it as they believe it should be. One reason to prefer the allocation of responsibilities in international law as it currently stands to the Goldstone Report’s efforts to transform it are the report’s stunning defects. They illustrate that those who are responsible for the operation of international institutions are no less subject to the passions and prejudices that thwart the impartial and objective administration of law than the government officials in civilized nations, and in some cases may be more subject to such passions and prejudices…
September 26, 2010
SPECULATION that Barack Obama will appoint a businessman to a senior job in his administration reached fever pitch this week, after the White House announced that Larry Summers, the president’s principal economic adviser, will soon step down. It is hard to find an American boss nowadays with a good word to say about the current administration, and the absence of anyone with a business background in Mr Obama’s inner circle is invariably mentioned as a reason why. The perception in corporate America that the president is actively anti-business, or at the very least doesn’t “get it”, has started to “have a psychological effect on how firms invest”, notes one well-informed insider, who used to see this as a “seven out of ten problem” but now rates it as a ten.
Discontent that started as mostly private grumbling not long after Mr Obama entered the White House has recently gone public. Ivan Seidenberg, the chief executive of Verizon, a telecoms giant, used a recent speech in Washington, DC, to accuse the president of creating an “increasingly hostile environment for investment and job creation”, claiming that the administration’s regulatory expansion into “every sector of economic life” is making it “harder to raise capital and create new businesses.” Jeff Immelt, the boss of GE, has said that the administration is not in sync with entrepreneurs. The US Chamber of Commerce, a business lobby, has complained that the Obama administration has “vilified industries”.
And so it goes on. The Business Roundtable, another influential trade association, has published a 49-page list of current policies which, it claims, inhibit economic growth. Last month Dan Loeb, a hedge-fund manager who is famous for writing intemperate letters to company bosses, circulated a letter accusing Mr Obama of, in effect, undermining free-market capitalism and the rule of law. What stings most is that Mr Loeb is a former classmate of the president’s and was a big donor to his election campaign.
Scary stuff. Yet does Mr Obama really have a case to answer? Certainly, some of the wilder allegations by some businesspeople should never have left the 19th hole. Mr Obama has consistently made it clear he favours a mixed capitalist economy. The big incursion of the state into finance took place on his Republican predecessor’s watch. And although he doubtless went further than a McCain administration would have done to help GM and Chrysler survive, he has stuck to his pledge to return them quickly to private ownership. He used this year’s state-of-the-union message to commit himself to helping corporate America double its exports, and has appointed a council to propose ideas for promoting more innovation (though, says one member, “The administration is doing more talking than listening, and several of us are already worried we’ve been suckered into a PR exercise.”)
Moreover, the main reason so many American bosses are down in the dumps is the sluggish economy. Mr Obama inherited the recession from his predecessor, and the economy has recovered, somewhat, since then. Besides, it was corporate America, in the shape of the Wall Street banks, that was largely to blame for the depth of the recession. It might have helped Mr Obama’s relationship with business if he had gone on less about “shameful bonuses” on Wall Street; but some shame was surely in order.
Even a Republican administration would have been obliged to reform financial regulation, and, though there is a lot to quibble with in the Dodd-Frank act, the administration responded to requests from Wall Street to kill some of the more alarming reform proposals from Democrats in Congress. One way it did this was to punt the proposals on to regulators for their consideration—which is why business is now able to complain about its “uncertainty” over what the full impact of Dodd-Frank will be. Mr Obama might reply that uncertainty is preferable to the alternatives that were considered by Congress.
Uncertainty is a common charge from complaining businesspeople. According to one senior White House official, it is “shorthand for ‘We don’t like health-care reform, don’t like Dodd-Frank, don’t want our taxes to go up’.” On taxes, the administration points out that even allowing all the Bush tax cuts to expire would return tax rates only to what they were under Bill Clinton, which was hardly a terrible time for business. There is also a nasty, mostly inherited, fiscal problem which business leaders agree needs solving. It will require deep spending cuts, but may also necessitate somewhat higher taxes.
As for health-care reform, many business leaders favoured the idea, complaining that the current system is increasingly a drag on the competitiveness of corporate America. But the bosses do have a point; it is hard to imagine that a president who really understood the depth of America’s economic problems would have pushed ahead with such a huge, disruptive reform at that particular moment. And it is also true that many of the details of the bill remain to be worked out.
Uncertainty also hangs over energy prices, despite the apparent failure of cap-and-trade legislation. Many big firms, including electric utilities and others with long investment horizons, believe that a price on carbon is inevitable sooner or later, perhaps through regulation, since the Environmental Protection Agency is empowered to treat carbon dioxide as an air pollutant. They would prefer certainty to the current confusion.
So it would be tempting to conclude that Mr Obama’s business critics protest too much, especially as their failure to create jobs in America coincides with earning huge profits and sitting on record amounts of cash. Better to point the finger of blame at the White House, they might well think, lest it be pointed at them.
Except that, as a person with first-hand experience of Mr Obama’s decision-making points out, the “atmospherics really do matter”. The mere perception that the administration is anti-business is “starting to make the bosses of Fortune 500 companies more risk-averse,” says a billionaire who used to run one of America’s leading internet firms…
September 26, 2010
This image has been posted with express written permission.
This cartoon was originally published at Town Hall.