The rule of law can be a fragile conceptual edifice. It underpins civilization itself by assuming a basic, shared human interest in honesty, fairness, propriety, and peaceable relations between parties. Warfare has always existed on the edges of this compact, by its very nature endorsing deliberate destruction and killing. Lawful societies generally fear and even abhor war, though it may occasionally be necessary, stimulating, and satisfyingly sanguinary.
Nations over the millennia have sought with varying degrees of success to apply the rule of law to warfare. This, on balance, has been a good thing. Unfortunately, that finely wrought effort is steadily unraveling in -- of all places -- Manhattan.
The United Nations Human Rights Council's adoption of the Goldstone Commission's report of Israel's Gaza campaign and the Obama administration's decision to try 9/11 mastermind Khalid Sheik Mohammed in New York both serve to empower terrorists, rogue nations, and all those who willingly and deliberately flout the laws of war. They are both the fruit of a relentless effort on the left's part to assuage civilized Western guilt by promoting the interests of, to put it bluntly, barbarians.
The HRC resolution adopting Goldstone is an almost laughable example of craven, sloppy, and biased moral and intellectual legal reasoning. Even Iran's president might be embarrassed by the richness of its anti-Israel excess. For example, the report admits that Israel has "elaborate legal advice and training systems in place which seek to ensure knowledge of relevant legal obligations and support for commanders and compliance in the field" not likely to be found in the armies of the twenty-one nations who voted for the resolution (from Bahrain to South Africa). But in the view of Judge Goldstone, this only makes matters worse.
The HRC report, with logic that would make Goebbels proud, concludes that because Israeli soldiers are so well-trained, Palestinian civilian deaths at their hands must be the result of deliberate and murderous action by troops who knew better, but let their base Jewish instincts run awry.
And that is just the froth of a deep draught of convoluted legal reasoning. Colonel Richard Kemp, a former commander of British forces in Afghanistan who also served in Northern Ireland, Bosnia, Macedonia and in the Gulf War, testified before the HRC that the Israel Defense Forces "did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare." The commission concluded that the IDF systematically violated the laws of war. There is no middle ground here -- one party is fundamentally and entirely wrong, and it is not Colonel Kemp.
It's easy to dismiss the Goldstone report as just another example of Israel-bashing. This view has muted the response to the HRC resolution to the relatively small universe of Israeli and pro-Israel politicians and media, while the rest of the civilized world yawns. It also allows liberal media like the editorial board of the Washington Post to question the validity (though not the purpose) of the Goldstone report the day after praising the Obama administration for deciding to try Khalid Sheikh Mohammed in a New York federal court.
Yet both developments are devastating to the laws of war. Goldstone's logic may be laughable, but it is now embedded in "customary international humanitarian law." Likewise, the decision to try Mohammed in federal court establishes a precedent that so muddles and confuses traditional distinctions between lawful and unlawful combatants as to sanction the latter and thus make the former irrelevant.
The United States voted against the HRC resolution and the Goldstone report, but not, it seems, because it was a legal and moral travesty. Rather, a State Department spokesman tepidly explained that "a better approach would have been to give the parties adequate time to study the report and establish accountability measures..." Likewise, the administration wants to have it both ways with respect to dealing with illegal enemy combatants held in Guantanamo.
As Morris Davis recently argued in the Wall Street Journal, this decision to go to trial in New York for some creates a "dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions." More generally, it gives ideologically committed terrorists, non-state actors, and rogue militaries less reason to fear the consequences of the most egregious violations of the laws of war against American civilians. When captured, terrorists can count on being accorded the full rights of their citizen victims, representation by a who's-who of publicity-seeking, media-savvy left-wing lawyers, and a soapbox for their causes.
The Goldstone report and the decision to try Khalid Sheik Mohammed in federal court undermine fundamental principles of law accepted in the West since the Peace of Westphalia in 1648. The Westphalian peace and the body of law that followed empowered the armies of nation-states and weakened non-national armies associated with religious movements or ideologies, as well as the mercenary bands and bandits that had plagued Europe for hundreds of years.
The ideologues on the left who represent Guantanamo inmates and write reports on Gaza -- call them pre-Westphalians -- are committed to empowering just the opposite: religious and ideological terrorists, criminals, bandits, and other non-state actors who thrive on anarchy. They do this under the banner of promoting "humanitarian law" and protection of individual rights.
But bowdlerizing the laws of war in order to provide effective sanctuary for terrorist armies (Goldstone) and providing full fledged civilian trials for terrorists captured in military operations (Khalid Sheik Muhammed) accomplishes just the opposite. It invites a return to the Dark Ages, when barbarians had the advantage and civilization was on the brink.
Jonathan F. Keiler is an attorney and former Army JAG officer who writes frequently on terrorism, military, and law of war issues.