The panel on the Goldstone Report was, as expected, one of the highlights of the 104th conference of the American Society of International Law held last week in the basement of the Ritz-Carlton in Washington DC.
(The other highlights? Harold Koh, the State Department’s top lawyer, unveiled the legal rationale for targeted killings via drone aircraft in Afghanistan and Pakistan; Professor Antony Anghie’s showcased lecture on the centrality of imperialism to the history of international law; Anne-Marie Slaughter, Director of Policy Planning at State, informed us that the age of power wielded over others is nearly gone; what the youngsters now talk about is wielding power with others. Callooh callay!)
But the Goldstone Report. It may be too much to call it the most controversial international legal document of the year, as the report went down quite smoothly in most of the world. But not in Israel or the United States, whose governments have condemned the inquiry as irredeemably biased against the Israeli Defense Forces. The ASIL panel would deal with this issue of alleged bias.
The panel was really a debate, ably moderated by Lucy F. Reed, president of ASIL. Defense of the report was mounted by Omar Dajani, a former legal advisor to Palestian peace talk team, corporate litigator at Sidley & Austin, and now a professor at McGeorge School of Law in Sacramento. The report was attacked by Abraham Bell, former clerk at the Supreme Court of Israel and a law and economics scholar University of San Diego. Dajani argued that the report is a very conservative document, upholding strictly construed norms and categories of international law, “toeing the line” against those who would rewrite the laws of war to the advantage of the IDF. Bell argued that the report is a “radical” document, bending international law past the breaking point.
Bell did the best he could, but I think Dajani carried the day. He was lucid, calm and argued with the appropriate degree of passion. Bell could really only nitpick, cast vague aspersions on the report’s “tone,” and talk about how tough it is to wage asymmetric war against a weaker, worse-armed enemy. (Dajani however evinced no such self-pity.) Bell denied, weirdly, that Gaza is under occupation.
Questioners were pretty evenly divided between supporters and critics of the report.
One questioner, a ponytailed gentleman from University of Tennessee, found it horribly unfair that Israel should be the target of so many General Assembly resolutions. Is there a double standard operating at the UN? Yes there certainly is, Dajani quickly responded, and this double standard is at the Security Council, where the US automatically vetoes any resolution against Israel. This leaves the General Assembly as the only forum for motions against Israeli violations of international norms. And these General Assembly motions are not much of a consolation prize, as the real power resides in the Security Council—a fact lost on most of the general public, and on many lawyers too.
Another questioner, Daniel Joyner of University of Alabama, asked Bell what Gaza’s status was, if it is indeed “unoccupied territory”—is it sovereign territory like Switzerland? Is it terra nullius like Antarctica? For it can only be one or the other. Bell’s response was curt and legalistically absurd: “Gaza’s status is… not occupied.”
“Right, except for its airspace and its borders and often its land,” Dajani quickly chimed in.
For his part, Dajani made no such auto-goals. It was nice to see that the Goldstone report had a defender on the top of his game.
Was this ASIL conference panel a new departure into real fairness and evenhandedness? Not really. Joyner, who has been to seven or eight of these ASIL confabs, told me that this crowd—highly educated, many of them non-American—has generally, but by no means unanimously, been open to international law arguments against Israel’s colonial domination of Palestine.
As for the related question of “lawfare,” it popped up throughout the conference. Not the neocon condemnations all legal challenges to Israel and America’s uses of force, but rather lawfare advocacy on the other side: folks eager to bend, rewrite and “update” the laws of war to the benefit of the American imperial project and its client states. There was Harold Koh justifying targeted killings via UAVs (drones) in Afghanistan and Pakistan. There was young Ganesh Sitaraman, of Harvard lamenting that international lawyers are not sufficiently “engaging” with this marvelous new technique of counterinsurgency warfare.
All to be expected, for the waging of lawfare is as old as international law itself; one could even argue that lawfare is the beating heart of international law. Let us not forget that the great Grotius, august 17th century father of international law, was also Huig de Groot, a picaresque shyster whose first legal treatise was a fast-talking apologia for Dutch privateers. The ASIL conference reaffirmed again and again the inherent two-facedness of international law. Yes it is quite true that international law has at times stood tall against overweening power. But at least as often international law lubes and legitimates the actions of the strong against the weak.
Chase Madar is a lawyer in New York.
