Lawfare: "Goldstone and the Guerilla Flotilla -- An Emerging Pattern"

Although the article refers to “Lawfare: Shared Implications for the U.S. and Israel.” I believe the points raised also refer equally to the UK and elsewhere

internet link to this briefing

The distinguished New York attorney Trevor S. Norwitz delivered the folowing remarks on October 5, 2010, at the conference of the Lawfare Project entitled “Lawfare: Shared 
Implications for the U.S. and Israel.” Published here by UN Watch with permission of the author.

Goldstone and the Guerilla Flotilla: An Emerging Pattern

By Trevor S. Norwitz

 One of the most troubling manifestations of Lawfare today is the increasing abuse of the instruments of international law, specifically to delegitimize and demonize one country (Israel) and to embarrass and weaken another (America).

I thought I would talk today about the latest contribution of the United Nations “Human Rights” Council to this phenomenon, namely its report on what might be called the Guerilla Flotilla (or, if you prefer, the Intifada Armada) which as you probably know was submitted to and accepted by that august body just a few days ago.  After that, I’d like to offer a few general thoughts on the topic of Lawfare.

The Flotilla Report is the “Son of Goldstone.”  Cut from the same cloth, it is a political manifesto masquerading as a fact-finding report. The main difference (aside from its scope) is that it does not bear the name of a prominent Jew and self-styled “Zionist” and so it is easier to just treat like all the other anti-Israel detritus that has come out of the UN over the years.

It is not surprising that the Flotilla Report looks, feels and smells just like the Goldstone Report given its genesis.  Hamas leader Khaled Mashaal specifically called for the HRC to commission “another Goldstone Report.”  After all, Goldstone excoriated Israel and exonerated Hamas (contrary to how many in the press have chosen to characterize it).  Needless to say, Hamas -- along with Hezbollah, Al Qaeda, Iran and all those other champions of human rights around the world -- are simply thrilled with the results of this mission as well.  They could not have written it better themselves.

The creation of a document like this, however preposterous it may be, is a perfect example of Lawfare in action: a massive public relations coup (”UN Flotilla” gets you 3 million Google hits in 0.11 seconds) and a precedent that can be used not only against Israel but against the US and other countries when they try to tackle asymmetrical threats in the future.

The most important thing to understand about the Flotilla Report is that it is a political document hinging almost entirely on the commissioners’ subjective determination of proportionality.   Its essential finding is that, since the Israeli sea blockade of Gaza was itself disproportional -- that is, it inflicts disproportionate damage on the civilian population of Gaza in relation to the military advantage sought by Israel -- it was illegal per se, so the boarding of the ships was illegal, justifying virtually everything the activists on the ships did to “protect” themselves and their ship and negating the legitimacy of almost anything the Israelis did. [1] 

This essential finding from which the Report’s other findings all flow shows up in one conclusory paragraph:  “[T]he Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and that as such the interception could not be justified and therefore has to be considered illegal.” (53)  In the entire 56-page Report there is hardly any discussion or justification for this key finding of disproportionality.  And there is no discussion whatsoever on Israel’s reasons for the blockade -- one of the two elements of the proportionality analysis -- beyond the observation (in one of the final paragraphs) that “Israel seeks to justify the blockade on security grounds” (263). [2]

It should be noted that the Mission did determine that the primary objective of the flotilla was not in fact humanitarian but political, namely to break the blockade (80), and also acknowledged that Israel had offered to itself deliver all of the humanitarian supplies the ships were carrying.  But somehow -- inexplicably -- they still found the blockade disproportional and therefore illegal.

To give you a sense of the mindset of the authors of this masterpiece of fictional jurisprudence, one of the comissioners, British lawyer Da Silva, commented that “even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.” The Goldstone and Flotilla Reports share many of the same fundamental flaws. I have time to cite just a few:

1.  Both missions were born in sin, the illegitimate offspring of politics and prejudice.  They were commissioned by the much same cast of characters, including many of the rogue nations who dominate the “Human Rights” Council.  In both cases they were authorized by resolutions that expressly prejudged the outcome.

   •   Goldstone called the resolution creating his tribunal a “very unfair lopsided resolution” but he still produced his report under it even though it was never formally changed.

   •   HRC Resolution 14/1 which established the Flotilla fact-finding mission is entitled “The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy” and at the outset “condemns in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships“.   (Of course this resolution was adopted after the footage of Israeli soldiers being beaten with iron bars had been all over the news.)  The commission, according to the Report, “found it necessary to reinterpret its mandate because of the manner in which the resolution appointing it was couched.”  In other words “yes we know we were hired to do a one-sided hatchet job and we took on that assignment willingly, but trust us when we say we had no prejudices”.  Well, that is just not good enough.  It is equivalent to Goldstone’s admission that Christine Chinkin would have had to be recused for bias if their mission had been a judicial inquiry. [3] 

2. Both missions based all of their findings on one-sided evidence.  In both cases, the evidence they had was obviously biased, and in Goldstone’s case it was (by the report’s own admission) also tainted by duress.  But the same basic formula was used to produce the factual findings in both: the evidence we collected (from the anti-Israel side) said X; Israel provided no evidence to the contrary; therefore we find that the facts are X.

   •   To quote from the Flotilla Report: “The Mission gave particular weight to the direct evidence received from interviews with eyewitnesses . . . the Mission was obliged to treat with extreme caution the versions [of TV footage] released by the Israeli authorities where those versions did not coincide with the evidence of eyewitnesses . . .”  (In other words, as Groucho Marx put it: “Who are you going to believe -- me or your lying eyes?”)

3. Both reports represent an unwarranted rush to judgment, dealing in an expedited cursory manner with matters that should be handled with much greater rigor.  The Israeli investigations into the allegations and accusations made by Goldstone have shown the vast majority of them to be false -- and the one or two that have substance are being pursued, as well they should.  The Flotilla mission is even more egregious in a sense because it is front-running the Turkel Commission, an ongoing independent investigation including international observers (which is quite unprecedented).

4. Both reports utterly failed (or refused) to investigate critical facts.  Goldstone exhibited the most extraordinary willful blindness in refusing to look beyond the evidence presented from the Palestinian side or to investigate Hamas’ behavior (such as locating fighters and weapons in hospitals, schools and other civilian locations). The Flotilla Report doesn’t even mention Hamas except to refer to their electoral victory as the alleged reason Israel wanted to punish the people of Gaza.  And it never examines the dubious background, aims or tactics of IHH, evidently the primary instigators of the violence aboard the Mavi Marmara.

5.  Both reports betray their bias in their use of language.  Here are a just a few gems from the Flotilla Report:

   •   You may have seen the photograph of an Israeli soldier who had been beaten and stabbed in the stomach with a knife (it was one of those photos doctored by Reuters to remove the knife from the picture); well, in the Report that is described as follows:  “One of the soldiers had a superficial wound to the abdomen, caused by a sharp object . . .” (A thumbtack no doubt!)

   •   There is a very short description of the battle itself -- the vicious one the whole world saw on TV -- just a few paragraphs, but here is how they describe the events when the first Israeli commandos tried to rappel down the rope and were pummeled by a mob of armed activists: “a fight ensued between passengers and the first soldiers to descend . . .”.  A fight ensued . . . like “war broke out” in 1948.  Or a scuffle ensued between the office workers in the World Trade Center and the young gentlemen who had commandeered the planes.

   •   You may have seen the video clip of the IHH leader urging his troops to jihad and martyrdom and to “throw the Jews off the ship”. In the Report it is noted that he “spoke with some bravado about preventing an Israeli takeover of the ship.”

   •   Of course on the other side there is no such euphemism: the Israeli commandos are found to have summarily executed passengers and tortured those they didn’t kill (by tying their plasticuffs too tightly).  The finding is actually that they are guilty of torture in violation of articles 7 and 10, paragraph 1, of the International Covenant on Civil and Political Rights and of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  And, to add insult to injury, they are guilty of not informing the passengers of the reason for their detention as required by Article 9, paragraph 2 of the International Covenant on Civil and Political Rights.

6.  Both reports demonstrate shocking evidentiary double standards, in the assessment of credibility of witnesses and evidence and in the ascertaining of intentions.  I go into some detail on this regarding the Goldstone Report in my letter to Judge Goldstone.  By way of example in the Flotilla Report, Israel’s evidence of weapons used by activists on the ship is summarily dismissed as unreliable but “the fact that some passengers engaged in last minute efforts to fashion rudimentary weapons shortly prior to the interception confirms the findings of the Mission that no weapons were brought on board the ship“. (101)

7. Both reports include grandiose political pronouncements that are not only irrelevant and inappropriate for a “fact-finding” mission, but betray both a lack of understanding of the complexities (let alone the equities) of the Middle East conflict and a bias against Israel.  For example, the Conclusions section of the Flotilla Report offers the pretentious but revealing admonition that “an unfair victory has never been know to bring lasting peace” and ends by referring to “the regrettable reputation which [Israel] has for impunity and intransigence in international affairs“.  In similar vein, the Goldstone Report criticizes Israel for “failing to protect its own citizens by refusing to acknowledge the futility of resorting to violent means and military power” (as though its implacable enemies like Hamas have given it any choice).

8. Both reports exhibit a startlingly un-judicial lack of balance between the prejudicial and the probative.  The Flotilla Report for example includes lengthy and graphic descriptions of the way in which the deceased activists were (allegedly) summarily executed and of the horrible abuses (allegedly) suffered by the surviving passengers after Israeli commandos took control of the ships which, although obviously derived from one-sided testimony, was simply stated as fact, and seemed to serve little purpose other than to highlight how merciless, bloodthirsty and depraved the Israeli military is.

I could go on and on but I think you get the point.  Tragically, both reports reward and encourage the most cynical and despicable of behavior.  Both cases represent a missed opportunity to provide moral clarity and deter cynical manipulation of international law and institutions. 

Instead they provided a blueprint for violent political groups as to how they can use international law to protect themselves and shift blame to those trying to contain them, a blueprint that can be used against the United States as easily as against Israel.

In my few remaining minutes, I’d like to say a few words about Lawfare more generally.

Almost anything created for a good purpose can be abused or even “weaponized”: think of an ice-pick, a candlestick, a box-cutter knife, an airplane, a shoe, a pair of underpants.

And not just physical objects.  We have seen the abuse of almost every institution invented by man: democracy (think of Venezuela, Iran, the Weimar Republic); education (look at Gaza under Hamas or the PLO, Apartheid South Africa); religion (no examples needed). 

It should be no surprise then that the law -- one of humanity’s greatest achievements, designed for the creation of ordered societies, the establishment and maintenance of justice and the determination and protection of truth -- is also susceptible to abuse.

Today what is really under attack is perhaps the most fundamental value in our Western culture: truth.  And it is ironic in the extreme that it is the law, which was created and designed to be the servant and protector of truth, that is the enemy’s weapon of choice to undermine the truth.

When one speaks of abuse, of things being misused, the abuse can be in design or in application.  Some things are just bad by design and no amount of tinkering can save them: crack cocaine -- it’s cheap and devastating and has no good purpose; the legal system of Apartheid South Africa (intricately designed to achieve its awful goal).  Such things cannot be fixed, they are just bad and have to be eradicated or, if that is not possible, contained.

But more often the abuse lies not in design but in application.  People take ordinary things and use them in a bad way:  a webcam becomes a weapon with which to bully; a water bottle becomes a bomb; a civilian airplane becomes a guided missile.

Human nature being what it is, it is not possible to guarantee that things will not be abused.  But once a risk of abuse is manifested, what we can do is implement design improvements to prevent that abuse in the future:  we add a dead bolt on the cockpit door -- a simple cheap fix to prevent a civilian aircraft being turned into a weapon of mass destruction.  Some fixes are more expensive and the cost benefit analysis is not as clear. 

The same is true for the law.  The fundamental problem is not one of design but one of application. I know some disagree and think that the laws should be changed to take account of asymmetrical warfare and terrorism, but I think the fundamental laws and principles themselves are basically fine.  Universal jurisdiction is not inherently a bad idea, but it is being abused.  The fundamental principles of the laws of war -- the principle of distinction between civilian and military objects, and the principle of proportionality, which have developed over hundreds of years -- are good and sensible tools for balancing the needs for people to defend themselves and their rights and the protection of the innocent.

The problem is that the application of these laws and principles has been corrupted.

When Tzipi Livni has to avoid traveling to England for fear of arrest under universal jurisdiction, something is wrong.

When a terrorist organization can commandeer a major hospital in Gaza for their military headquarters with absolute impunity because the so-called fact-finders are not interested but are only looking to condemn the other side, something is wrong.

When the so-called “human rights” organs of the United Nations are so obsessed with demonizing one country that they make a mockery of the very idea of human rights and allow real violators to literally get away with murder and genocide, something is terribly wrong.

The question of why seemingly good people abuse the law like this is a fascinating one but beyond my brief.  A question we do need to ponder is what can be done about it?

In some cases, there are fairly simple design improvements -- like the dead bolt on the cockpit door -- that will fix a problem.  For example, England and other countries are in the process of fixing (or have fixed) the abuses of universal jurisdiction in their countries.  

I am actually confident that the law is quite resilient and, with the help of good lawyers and NGOs likeThe Lawfare Project who shine a light into the darkness, will strike the right balance eventually. 

In the meantime, there are a variety of tactics by which to prod the law in the right direction: political intervention of course; legal defence work (although that can legitimize the abuse, and so has not been favored for example by Israel which has refused to cooperate with the marsupial tribunals of the HRC, or the International Court of Justice in the separation barrier case, another nadir of jurisprudential gibberish); and perhaps also going on the Lawfare offensive, if only to highlight the absurdity of the abuses.  Public relations is a large part of the battle, since that is one of the main objects of the abusers.  And just continuing to speak the truth is an imperative -- and a victory in itself.    

Where I have far less confidence is in the institutions that are being entrusted to implement these laws.  In particular the so-called “human rights” organs of the United Nations.  It is becoming increasingly clear that these bodies, in particular the “Human Rights Council,” are not capable of being a force for good in the world.  To the old saying “If it ain’t broke, don’t fix it” I’d like to offer a corollary: “If it ain’t fixable, don’t waste resources trying.”  The U.S. made a good effort at constructive engagement with the Council but it is clear that it has not worked.  The HRC is not in need of a design tweak, it is rotten and malignant to the core.  I believe that the single most significant step that could be taken to put an end to the abuse of international law is for the U.S. to disengage from that contemptible body.

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Footnotes

 [1] Although the Report’s authors did not actually accuse Israel of piracy -- although I am not sure why they bothered to stop short given the tone of the Report -- they did note that the use of water cannons is specifically advocated by merchant marine manuals as a defence against pirates.

[2] I suppose space was too tight because of the need to include so many pages of graphic “eyewitness accounts” of Israeli brutality, sadism and sexual depravity.

[3] In fact, the Flotilla commission was apparently so ashamed of their authorizing resolution that they dropped it as an Annex in the final Report although it had been called for as an exhibit in the draft submitted.