Skip to main content Accessibility help
×
Home
Hostname: page-component-544b6db54f-bkjnw Total loading time: 0.165 Render date: 2021-10-19T14:23:55.337Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

THE APPLICATION OF IHL IN THE GOLDSTONE REPORT: A CRITICAL COMMENTARY*

Published online by Cambridge University Press:  02 November 2010

Get access

Abstract

Operation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.

This article analyzes the Goldstone Report's application of the law to the conduct of both parties in the conflict to examine how it applies and interprets the legal standards within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report's application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.

First, the article highlights the report's flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.

Second, the article highlights several areas in which the Goldstone Report's application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

Type
Current Developments
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

* © L.R. Blank, 2010.

9
Cited by

Send article to Kindle

To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

THE APPLICATION OF IHL IN THE GOLDSTONE REPORT: A CRITICAL COMMENTARY*
Available formats
×

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

THE APPLICATION OF IHL IN THE GOLDSTONE REPORT: A CRITICAL COMMENTARY*
Available formats
×

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

THE APPLICATION OF IHL IN THE GOLDSTONE REPORT: A CRITICAL COMMENTARY*
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *