Lawfare Archive: Peter Berkowitz on Israel and the Laws of War
Oct 14, 2023
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Peter Berkowitz, a guest with a new book on Israel and the laws of war, discusses the abuse of the laws of war by Israel's critics, focusing on the Goldstone Report and the Gaza Flotilla controversy. He also explores the flaws in the Goldstone Report and the legality of investigating war crimes. Additionally, he delves into the role of courts in war and the importance of liberal democracies complying with international laws of war.
The Goldstone Report's flawed factual findings and misapplication of legal tests undermined its validity, demonstrating the intensified use of legal claims to delegitimize Israel's right of self-defense.
The United States should support Israel in upholding the international laws of war, as the struggle over the interpretation of these laws is a critical battle for the US in the face of transnational terrorism.
Deep dives
The Goldstone Report and Gaza Flotilla Controversy
The Goldstone Report, published by the UN General Assembly in September 2009, accused Israel of war crimes during its Gaza operation. The report focused mainly on allegations against Israel and sparked condemnation. However, the report's flawed factual findings and misapplication of legal tests undermined its validity. The Gaza Flotilla controversy, which occurred in May 2010, centered around Israel's blockade of Gaza. Critics argued that the blockade was illegal and that Israel had no right to stop the flotilla. However, Israel's blockade was lawful, and it had the right, under international law, to defend itself against Hamas' continuous rocket attacks. The international reaction to these events demonstrated an intensified use of legal claims to delegitimize Israel's inherent right of self-defense.
The Importance of Defending the International Laws of War
Liberal democracies, like Israel and the United States, face challenges in upholding the international laws of war. The misuse and abuse of these laws not only criminalize the inherent right of self-defense but also diminish the scope of legitimate military action. The United States should care about defending the international laws of war for several reasons. Firstly, as an opponent of injustice, the US should support Israel, a liberal democracy, when its right of self-defense is unjustly criticized. Secondly, the struggle over the interpretation of these laws is a critical battle for the United States, particularly in the face of transnational terrorism. Invalid legal arguments used against Israel may eventually be directed at the US. The US needs to counter these arguments with strong legal defenses, protect its right of self-defense, and ensure the permissive quality of the international laws of war is upheld.
Flaws in the Goldstone Report and Legality of the Blockade
The Goldstone Report suffered from serious flaws. It heavily relied on testimony from Palestinians in the Gaza Strip, despite the challenges of credibility and reliability in an authoritarian-controlled region. Additionally, the report failed to gather facts in Israel, which was under no legal obligation to cooperate with the report. The report misapplied legal tests and made invalid legal findings due to the lack of access to Israeli rules of engagement and soldiers' testimonies. Regarding the Gaza Flotilla controversy, the argument that Israel's blockade of Gaza was illegal is near-frivolous. Israel did not meet the legal definition of an occupying power, as it had no military presence or citizenry in the Gaza Strip. Even if Israel were considered an occupying power, it retains its right of self-defense, as evident from the continuous rocket attacks by Hamas. The defense of the international laws of war is crucial in maintaining the legitimacy of self-defense actions by liberal democracies.
From May 8, 2012: Peter Berkowitz of the Hoover Institution has a new book out, entitled Israel and the Struggle Over the International Laws of War. The book, which is very brief—more of a long essay, really—is an impassioned critique of the abuse of the laws of war by Israel's critics in both international organizations and in the academy. Peter runs the Hoover Institution's Koret-Taube Task Force on National Security and Law, of which Ben and several other people associated with this blog are members. He's also—full disclosure—one Ben’s closest personal friends. He took a break from his almost unspeakable travel schedule yesterday to stop by Brookings and chat about his book.
