Friday, August 06, 2010

A new Goldstone critique

Peter Berkowitz, at the Hoover Institution, takes a different tack on criticizing the Goldstone Report in a new article. His concern is much larger - that Goldstone represents a departure from the mores of international law and represents a danger for democratic, liberal nation-states:

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.

...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.

...There is a danger that the spread of practices among international bodies and an accumulation of precedents concerning international law will weigh down the United States in the struggle that it shares with Israel and others to combat, in accordance with the law of armed conflict, transnational Islamic terrorism. Of course that will only happen if the U.S. recognizes such practices and precedents as authoritative. Encouragement to do so comes from powerful trends in American universities and law schools, where professors for going on a generation have been cultivating in their students the view, which animates the Goldstone Report, that critical judgments about the lawful conduct of war are indeed properly and in the first instance the province of international institutions.

That view is suited to a world in which all nation-states incline to peace and govern themselves in accordance with liberal and democratic principles. Unfortunately, that is not the world in which we live. Nor is it a world we can expect to emerge anytime soon.
The Goldstone report is not only flawed and biased - it is dangerous.

(h/t sshender)