Sunday, August 23, 2009

Cotler and the Queen of Hearts

The ongoing UN mandated inquiry in to Israel's war against Hamas being led by the highly-regarded Justice Goldstone--the so-called Goldstone Inquiry--has come under a great deal of criticisms for a number of reasons.

The most recent critic is the also highly-regarded Irwin Cotler, a Liberal member of the Canadian Parliament and a former Canadian Minister of Justice.

Mr. Cotler published an incisive, two part critique of the Goldstone Inquiry in the Jerusalem Post. Part one of his critique focuses on flaws with the inquiry itself. It points to the various flaws with the inquiry itself--some of which has already been pointed out on this blog--for example, inquiry member Professor Christine Chinkin who even while hostilities were ongoing, signed a letter indicating that Israel's actions were not self defense.

In response to critiques Professor Chinkin has defended herself by arguing that her letter referred to Israels violations of Jus ad Bellum--the legality of the use of force--as opposed to the inquiry's focus which is Jus in Bellum, how the war itself was conducted.
While it's true that the two concepts are different, it is a somewhat hollow argument as it does not change that Prof. Chinkin maintains that Israel never had the right to fight back against nearly a decade of rockets being fired indiscriminately at it's citizens. In the conflict Prof. Chinkin is being asked to evaluate, she has already declared one of the parties to have been guilty.

Cotler also verges on calling Goldstone naive for having allowed himself to become involved in the inquiry and for allowing himself to be so easily reassured that the mandate of the inquiry--which only mentions any violations of international law that Israel may have made--could be enlarged to include an investigation of Hamas. Cotler also correctly points out that Goldstone's claims not to have criticized Hamas prior to Operation Cast Lead because of Israel's failure to formally complain to the UN is nonsense, as Israel most certainly had made formal complaints. On the other hand, Cotler is too critical of Goldstone for signing a letter indicating the the violence in Gaza had shocked him to the core. This critique is unfair because, though justified, operation Cast Lead was a large, violent military operation and indeed, part of the purpose of the operation may have been to create shock. Certainly large scale violence of any kind, justified or not, is shocking.

Human Rights law Professor William A. Schabas, said: “The international community must apply the same standard to Gaza as it does to other conflicts and investigate all abuses of the laws of war and human rights. The current UN inquiry is no substitute for a full investigation. It is not only the UN personnel that deserve truth and justice, but Palestinians and Israelis themselves.” This is more or less what Cotler attempts to address in the second part of his JPost article.

Cotler begins by asserting that no people or country is above the law or exempt from scrutiny or prosecution, but that all countries must have equality before the law. Cotler suggests that the crux of the reason the Goldstone Inquiry should be opposed lies in its symbol as a denial of equality for Israel before the law. In not so many words, he argues that Prof. Schabas' admonition is being ignored because the standard applied to Israel is indeed different than the standard applied in other conflicts and that to equate Israeli actions with Hamas ones is ignorance of certain realities and intentions.

A significant omission from Cotler's text is his failure to criticize Israel for not cooperating with the inquiry. This blog has opined more than once that Israel is doing itself a disservice by not cooperating with the commission. Ignoring the commission means that Goldstone's best intentions to document and 'call-out' Hamas for its war crimes could fall flat or be little more than porous, weak indictments. While the Goldstone Inquiry is worthy of sharp criticism, Cotler could have examined how Israeli participation in the inquiry could turn things around.


Joe in Australia said...

I can't see how Professor Chinkin can reasonably argue that the war itself was illegal, but that the conduct of the war may or may not have been illegal. She has already decided that every action taken by Israel in pursuit of that war was furthering an illegal act - and therefore illegal in itself. It seems to me that this makes her position untenable.

Charlie H. Ettinson said...

Thanks for your comment.
I agree with you that Chinkin should not be a part of the inquiry and have written in previous posts that I think she should recuse herself. There is certainly precedent in international law for judges and commissioners to recuse themselves after having expressed opinions on issues they are supposed to investigate impartially.
That being said, Chinkin's position is that even though Israel did not have a right to go to war (a position which I simply cannot even try to defend) once they were at war, they had to ensure that they minimized harm to civilians, treated prisoners well and respected the international conventions that apply to armies that are already in conflict. This is the distinction between Jus ad Bellum and Jus in Bellum.
Chinking defends herself by saying even there there was no Jus ad bellum--no legal basis for going to war--what she is being asked to examine now is whether there was jus in bellum.
There is a legal distinction between the two, but this is more than just a legal inquiry, it has a clear political angle. It's also wort pointing out that for Chinkin to distinguish between these two seperate concepts is not enough. There must be an appearance of justice and fairness. I would argue that her previous statements on the matter have destroyed any appearance of fairness that may have existed.

SfA said...

1. For some reason, this ( went unnoticed (I originally spotted it on UN Watch site).
2. After reading lots of articles on the issue, I tend to believe that Israel is right not to cooperate with the inquiry - it would have given the ultimate legitimation (that Goldstone was so eager to seek) to their 'Alice in Wonderland' justice.

Charlie H. Ettinson said...

Thanks for the comment and for the link. I had missed it too, but it says almost exactly what I said above, that the appearance of impartiality is just as important as actual impartiality.
As for cooperating or not, I think that Israel is missing an opportunity by not cooperating. Not cooperating forecloses Israel from criticizing the report for being one sided because it can alwas be argue that Israel declined the opportunity to influence the official record. I think participating gives Israel the opportunity to favorably influence the panel and its findings and also gives Israel the right-of-reply afterwords--the ability to say: 'we told you XY and Z, here is the proof of us telling you, and you either ignored or misinterpreted the hard evidence we have provided you.'

SfA said...

this is one way of looking at it. the other way is to realize that Israeli cooperation would grant the UNHRC (not Goldstone team) the full legitimization to declare Israel is guilty of war crimes - because all the evidence Israel could present would be ignored. Let's examine similar case in the past: Israel cooperated with HRW and seems like HRW military expert reached understanding with his IDF vis-a-vis, isn't it ( No! (, on the same day HRW charges IDF with partisan approach. So, Israel cooperates with HRW no more, because either way Israel is a sinner. Please reread this ( and this ( Anyway, this is not math, we'll never know what could been the best course...

Charlie H. Ettinson said...

Thank you for the reply. I took a look at the links you provided and have said many of the things you point out in previous posts ( I also note that I've said similar things to what Dershowitz said about Goldstone (
You raise the issue of NGOs and their errors. This is a slightly different issue than the one at hand, but I think it makes a separate interesting point--human rights NGO seem to believe they're infallible. What troubles me about this so much is that these types of groups are so important. The world needs people who will stand up for what's right but these groups must acknowledge that they too are subject to scrutiny and may be wrong.
I think the best point you make is that the decision to participate or not is not a question of science. It's a political decision.
No doubt, Israeli decision makes have decided it was a safer "risk" not to participate than to participate, and you agree. Likely, they decided it was a lose-lose situation, so it's better to lose cheaply and not spend the resources on participating.
I think that Israel, as a democratic society and as the target of accusations stands to gain more from thoroughly presenting its side of the story and defending itself.
I am very interesting in seeing how Mr. Goldstone's report will be received.

Steve Lieblich said...

While I heartily agree with Charlie, that Israel urgently needs to argue its case, and defend its actions, the UN is not the forum to do that.

The UN has proven time and again that its apparently "democratic" processes are just a fig-leaf for the fact that most of the delegates represent a despotic regime, not the population of their nation. The despots "out-vote" the truly free nations, and so the UN is terminally flawed.

What's the point of submitting to a court if you don't believe in its fairness, nor intend to abide by its prejudiced decisions?

The effort should be put into explaining why the inquiry CANNOT make a fair decision.

Israel must make its case, as Alan Dershowitz points out "in the court of public opinion" ...over the heads of the UN and its prejudiced, biased appointees like Chinkin, direct to the 6 billion people on this earth....

Charlie H. Ettinson said...

Hi Steve,

I’ve always been and remain a big support of the UN. Not so much in its current iteration, but what it’s capable of and what it should do. That’s why it breaks my heart to realize that yes, you’re right, UNCHR is run by countries that have it in their best interests to deflect attention from their own gross abuses onto others.

Nonetheless, from an international law perspective, I think Israel is best served by a hybrid approach that would include what you suggest regarding explaining to the world why it does what it does and why the inquiry has fatal flaws. At the same time, it should cooperate with the inquiry, providing detailed evidence clearly highlighting its innocence and thorough investigation of all reasonable accusations against it.

Also, as I think I’ve said in the past, cooperating, allows for a far move effective critique, because even without Israeli participation, an official UN document will be issued and may well find Israel guilty without Israel even defending itself.

This is an approach that will also have public diplomacy value, because now, what the world sees is that Israel is refusing to cooperate with investigations, and that looks suspect.