Siren Song: The Implications of the Goldstone Report on International Criminal Law
We propose a truly academic endeavor – consideration of the Goldstone Report divorced from either or any 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 specifically international criminal law, separate and apart from the context of the Israeli Palestinian conflict.
One such aspect is the Goldstone Report’s ex post facto evaluation of targeting decisions made by the IDF in contravention of a long established principle of war crimes liability. Under this principle, evaluation of targeting decisions requires considering the situation through the perspective of the military commander at the time the judgment at issue was made. Another aspect, two really, both relate to the ICC. The first is that by calling into question Israel’s 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. The second stems from the Palestinian Authority’s (PA) attempt to accept ICC jurisdiction following Operation Cast Lead. In summarily rejecting a request by an entity lacking the requisite dramatis personae of a State, the Prosecutor to the ICC has created, or certainly not dispelled, the false impression that the events that occurred in Palestinian territory fall within his 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, any resulting criminal liability determined, and the parameters of State responsibility to investigate allegations of LOAC violations.
Chris Jenks and Geoff Corn, Siren Song: The Implications of the Goldstone Report on International Humanitarian Law, 7 Publicist (2011) archived at https://perma.cc/CB8H-SHP8.