American decision-makers are on the eve of a decision of monumental importance.
President Barack Obama is considering deploying tens of thousands of additional American soldiers to Afghanistan in a war he called "fundamental to the defense of our people" in his August speech to the Veterans of Foreign Wars. Similarly, Pakistan — an unstable regime with nuclear warheads — is engaged in a fierce internal battle with the Taliban.
If President Obama concludes that using U.S. forces to prevent Afghanistan and Pakistan from falling to the Taliban is an act of legitimate self-defense, then he will face obstacles beyond the strategic and tactical. The recently released "Report of the Goldstone Commission" on the January conflict in Gaza threatens to challenge the legality of the president's decision.
Much has and will be written about the report — mandated by the U.N. Human Rights Council — regarding what Israel dubbed Operation "Cast Lead." Some have noted that it is one-sided and lacking objectivity; others have raised significant questions about its intellectual integrity. Even Justice Richard Goldstone now appears to be backing away from aspects of the report he authored.
While Goldstone's professed surprise that Israel's enemies would seize on his words seems odd given his extensive experience in international affairs, the issues are far larger than whether Goldstone has been misunderstood.
The essence of the report has long-term ramifications that deserve our immediate attention.
In a nutshell: The report legitimizes terrorism and delegitimizes a nation-state's right to self-defense as preserved in the U.N. Charter. The fundamental issue is the application of the report to conflicts worldwide — in particular, how nation-states protect their citizens.
Prior to the operation — for four years after Israel disengaged from the Gaza Strip — hundreds of thousands of Israelis within a 40-kilometer radius of the Gaza Strip lived in daily fear of Kassam rockets fired in their towns. By largely dismissing that fact, the report all but suggests that nation-states do not have the right to fulfill its principal obligation of protecting its citizens.
By delegitimizing the nation-state's right to self-defense, the report places American commanders in Afghanistan, Pakistan and elsewhere in a legal "cross hairs." If terrorism is legitimate, then counter-terrorism is illegitimate. If that is the case — as the report intimates — then protecting national self-interest is illegitimate.
In other words, the true significance of the report is a minimization of national sovereignty. The ramifications are extraordinary: A fundamental rearticulation of the nation-state's right to self-defense that may now be deemed no longer legitimate. A nation-state that can't defend itself is, at the end of the day, unprotected.
President Obama has a serious decision to make with grave consequences for America and the world. The Goldstone report –which incorrectly and dangerously delegitimizes the right to self-defense against terrorism — must not be an added consideration.
To that end, both the administration and its allies must overwhelmingly reject this report. Those the president sends to battle are counting on him, just as he is counting on them. That is the very least the president owes those he places in harm's way. Our soldiers have our back; we must have theirs.
Amos N. Guiora is a professor of Law at SJ Quinney College of Law, University of Utah. Guiora, who lectured locally last week, was the legal adviser to the Israel Defense Force Commander in Gaza from 1994-97. His latest book is Freedom from Religion: Rights and National Security. E-mail him at: [email protected]