Finding facts but missing the law: the Goldstone Report, Gaza and lawfare.

• Author: Blank, Laurie R.
• Position: Symposium: Lawfare

Civilian deaths in Gaza often produce immediate conclusions of Israeli war crimes and other violations of international law. We now see similar statements in the aftermath of U.S. or allied attacks resulting in civilian deaths in Afghanistan. The increasing use of law as a tool of war--a practice termed "lawfare"--offers a likely and potentially disturbing explanation for the attempts to fashion every civilian death caused by a regular military as a war crime. As military forces find themselves increasingly under attack for alleged violations of IHL in conflicts in Iraq, Afghanistan, Gaza, Lebanon and elsewhere, one crucial contributing factor is the manipulation of international law--the very principles enshrined in the Geneva Conventions and customary law--to create an appearance of war crimes and other atrocities being committed by the United States and Israel in particular.

This article will explore these developments through the lens of the Goldstone Report, the report of the U.N. fact-finding mission tasked with investigating alleged violations of IHL and human rights in the 2008-2009 war in Gaza. It will examine how the Goldstone Report contributes to-even puts a stamp of approval on--the use of lawfare. In particular, this article will examine how the misapplication of IHL in the Goldstone Report exacerbates the manipulation of IHL by insurgents and terrorists, who use the law, and Western militaries' adherence to the law, as a tool of war in today's conflicts. Key areas include perfidy, military objectives and the targeting of protected objects, and the defending party's obligations to take precautions to protect the civilian population. The Goldstone Report's approach to IHL, if followed, would facilitate and encourage such manipulation of the law and, rather than leading to greater protection for civilians, actually produce conflict scenarios where civilians are at ever greater risk.

1. LAWFARE, ASYMMETRICAL CONFLICTS AND IHL A. Lawfare B. The Principle of Distinction C. Asymmetrical Conflicts II. THE GOLDSTONE REPORT'S CONTRIBUTION TO THE DANGERS OF LAWFARE A. Perfidy B. Military Objectives C. Precautions 1. Precautions in attack: effective advance warning 2. Defender's obligation to take precautions III. INTO THE FUTURE: THE EFFECT ON LOAC ADHERENCE AND PROTECTION OF CIVILIANS Civilian deaths in Gaza--whether during Operation Cast Lead, the May 31 flotilla incident, or other incidents--seem to produce immediate conclusions regarding Israeli war crimes and other violations of international law. Recently, we have seen similar statements in the aftermath of U.S. or allied attacks leading to civilian deaths in Afghanistan. International law recognizes, indeed accepts, that civilians will die during war, and yet we now see a growing trend in which every civilian death necessarily seems to connote a crime. Neither the growing public awareness of international law nor the twenty-four hour news cycle can fully explain this phenomenon.

   Instead, the increasing use of law as a tool of war, a practice termed "lawfare," offers a more likely and more disturbing explanation for the attempts to fashion every civilian death caused by a regular military as a war crime. (1) International humanitarian law (IHL), otherwise known as the law of armed conflict or the laws of war, governs the conduct of both states and individuals during armed conflict and seeks to minimize suffering in war by protecting persons not participating in hostilities and by restricting the means and methods of warfare. (2) IHL contains extensive provisions requiring protection of civilians and proscribing attacks that target civilians and indiscriminate attacks. These provisions form part of the legal doctrine of militaries around the world, including those of the United States, United Kingdom, Israel, and other Western allies. (3) And yet these militaries find themselves increasingly under attack for alleged violations of IHL in conflicts in Iraq, Afghanistan, Gaza, Lebanon, and elsewhere. Politics play a role in these developments, naturally, but one crucial contributing factor is the manipulation of international law--the very principles enshrined in the Geneva Conventions and the above-mentioned military manuals--to create an appearance of war crimes and other atrocities being committed by the United States and Israel in particular.

   This article will explore these developments through the lens of the Goldstone Report, the report of the U.N. fact-finding mission tasked with investigating alleged violations of IHL and human rights in the 2008-2009 war in Gaza. (4) The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and might be used to solve difficult problems such conflict poses. Mandated to investigate possible violations of IHL and human rights law during the conflict in Gaza, the Goldstone Report engages in a sweeping review of the conflict, as well as the historical underpinnings of the Israeli-Palestinian conflict, human rights in the West Bank and in Israel proper, and Israel's strategic aims. This article will not engage in a thorough discussion of the report's mandate or the shortcomings in the report's application of IHL and human rights law. (5) Rather, it will examine how the Goldstone Report contributes to-even puts a stamp of approval on--the use of lawfare. In particular, this article will examine how the misapplication of IHL in the Goldstone Report exacerbates the manipulation of IHL by insurgents and terrorists, who use the law, and Western militaries' adherence to the law, as a tool of war in today's conflicts. The Goldstone Report's approach to IHL, if followed, would facilitate and encourage such manipulation of the law and, rather than leading to greater protection for civilians, actually produce conflict scenarios where civilians are at ever-greater risk.

   Section I will provide an overview of the concept of lawfare and the nature of warfare in asymmetrical conflicts, and will also briefly examine the key principle of IHL at issue in this analysis, the principle of distinction. Section II will discuss the shortcomings in the Goldstone Report's application of IHL and will demonstrate how those errors will actually exacerbate the use of lawfare and greatly undermine IHL's fundamental protections for civilians and civilian objects during armed conflict. Finally, Section III will explore what these challenges mean for the future, given the continuing trend of complex conflicts between state and non-state actors.

1. LAWFARE, ASYMMETRICAL CONFLICTS AND IHL

   1. Lawfare

      Lawfare is generally defined as "the strategy of using or misusing law as a substitute for traditional military means to achieve military objectives." (6) The term was first popularized in a 2002 article by Major General Charles Dunlap, in which he explained:

      Lawfare describes a method of warfare where law is used as a means of realizing a military objective. Though at first blush one might assume lawfare would result in less suffering in war (and sometimes it does), in practice it too often produces behavior that jeopardizes the protection of the truly innocent. There are many dimensions to lawfare, but the one increasingly embraced by U.S. opponents is a cynical manipulation of the rule of law and the humanitarian values it represents. Rather than seeking battlefield victories, per se, challengers try to destroy the will to fight by undermining the public support that is indispensable when democracies like the U.S. conduct military interventions. A principal way of bringing about that end is to make it appear that the U.S. is waging war in violation of the letter or spirit of LOAC. (7) Two aspects of lawfare are relevant to the instant discussion: strategic and tactical. The above description of lawfare highlights the strategic aspect, in which technologically and militarily disadvantaged forces target public support and seek to force a political end to the fighting because of opposition to a seemingly extra-legal war. (8) The tactical piece occurs when the disadvantaged side--insurgents, terrorists, etcetera--openly violate the law of war to gain a tactical advantage in specific operations by handicapping the ability of the IHL-compliant military to carry out its mission within the bounds of the law.

      The conflicts in iraq and Afghanistan abound with examples of this type of tactical lawfare. Storing munitions in mosques or hospitals, launching rockets from residential compounds, and generally fighting from within the civilian population without any distinguishing markings all create situations where an IHL-compliant military often appears forced to choose between engaging a legitimate target and endangering civilians. For example, Taliban militants have stored heavy weaponry in mosques and reportedly positioned two large anti-aircraft guns in front of the office of a major international humanitarian aid organization. (9) "By shifting soldiers and military equipment into civilian neighborhoods and taking refuge in mosques, archeological sites and other nonmilitary facilities, Taliban forces are confronting U.S. authorities with the choice of risking civilian casualties and destruction of treasured Afghan assets or forgoing attacks." (10) Similarly, U.S. and allied forces in iraq encountered multiple examples of insurgents using civilians as human shields, attacking from locations protected under IHL, fighting without wearing a uniform or other distinctive sign, and using protected places for weapons storage and command posts. (11) Operation Desert

      Storm involved similar attempts to manipulate U.S. law of war compliance. As the United States explained in a communication to the United Nations at the time, the Iraqis

      [M]oved significant amounts of military weapons and equipment into civilian areas with the deliberate purpose of using innocent civilians and their homes as shields against...