The Magazine

The Fantasy World of International Law

The criticism of Israel has been "disproportionate."

Aug 21, 2006, Vol. 11, No. 46 • By JEREMY RABKIN
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At the outset of the current war in Lebanon, governments in Europe protested that Israel's response was "disproportionate." The U.N. human rights commissioner, Louise Arbour, endorsing this claim, spoke darkly of Israeli "war crimes." I happened to be at a conference in mid-July where there were a number of military lawyers. I asked one of them, who teaches military law at one of the service academies, what this talk about "proportionality" actually meant. The answer was prompt and succinct: "It means they don't like Israel."

From the perspective of international law, it doesn't take much to condemn Israel. Year after year, for example, the old Human Rights Commission devoted more time to condemnations of Israel than to any other topic, while often ignoring atrocities elsewhere. That was one reason the U.N. abolished the commission last year, substituting a supposedly more sober Human Rights Council. In its first year, the new council decided to forgo other distractions and devote all its country-specific resolutions to condemnations of Israel.

Still, it is worth pausing over the argument, because it reveals quite a bit about the way standards for military action are now treated by specialists in international law. For most European countries, these standards are literally academic--since few European military forces can imagine engaging in anything close to actual war. But the trend in opinion in this area will have implications for the handful of military powers remaining--of which, come to think of it, Israel is not the only one.

Start with the source of the relevant standards. The two treaties most often cited by scholars are Additional Protocol I to the Geneva Conventions (1977) and the Statute of the International Criminal Court (1998). The Additional Protocol was the first treaty attempting to set standards for military tactics and the overall conduct of war since the Hague Conventions of 1907. (The 1949 Geneva Conventions dealt with specialized matters such as the treatment of war prisoners, sick or wounded combatants, and civilians in occupied territories.) Relevant provisions of the ICC statute for the most part simply recite standards set down in the Additional Protocol.

Both treaties contain constraining provisions that might seem relevant to Israel's military actions--especially to the bombing that could have been expected to cause extensive casualties or severe hardships to civilians. The most obvious difficulty with citing these standards, however, is that Israel is not a party to these treaties. Nor, as it happens, is the United States.

The failure of Israel and the United States to ratify these measures ought to detract a good deal from their relevance, especially since the failure was not a matter of pique. Whereas previous Geneva Conventions had protected uniformed, disciplined armies that complied with the laws of war, the Additional Protocol sought to extend protection to guerrilla forces and terrorist groups. Yasser Arafat's PLO was granted observer status at the negotiating conference and expressed satisfaction with the results, especially the embrace in the very first article of the treaty of "conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes"--understood by everyone in 1977 as a reference to Israel, given the recent U.N. General Assembly resolution equating Zionism with "racism." The Reagan administration, rejecting U.S. participation in this treaty, warned that the treaty would give special protections to terrorist groups.

Does a treaty have any claim on a state that has not ratified it? Scholars insist that even states that have not ratified a particular treaty may still be bound by its terms if they have entered into "customary law" or "usage." But it would be very hard to show that Israel's targeting in Lebanon was in clear violation of standards that are otherwise widely respected. (They certainly weren't by Russia in Chechnya or NATO in Kosovo.) What scholars assume is that "custom" can be derived not from what states actually do but from what diplomats say. Counting that way, you can amass quite a lot of "votes" on the side of the Geneva and ICC standards, because most countries have ratified them--and most have no contrary practice because they have not actually been at war. In effect, claim to these treaties as "international law" is to claim that a majority of the General Assembly can legislate for the world.

I
f you view the relevant standards in this light, then it may seem quite reasonable that these standards should still apply to one side in a war, even when its enemy defies them. The traditional view, reflecting the logic of war, was quite the opposite. The Hague Convention on the Laws of War on Land (1907) carefully stipulated at the outset that its standards would "not apply except between contracting powers"--that is, states adhering to these standards--"and then only if all the belligerents are parties to the Convention." The signatories were not even willing to be bound by these rather general constraints against a power that might gain advantage by acting in collusion with a nonsignatory.

The Hague standards were negotiated, for the most part, by a circle of European governments thinking quite concretely about what constraints they could accept in what circumstances. They were not willing to accept constraints against enemies that did not. No one engaged in any hand-wringing at the Hague over the fact that in recent colonial wars--by the British in South Africa, the Americans in the Philippines, the Germans in Southwest Africa--Western armies had not complied with standards set down in the 1899 version of the Hague Convention.

By contrast, the scholars who rely on the Additional Protocol (like its drafters) imagine a world in which the actions of one side in a war make no difference to the obligations of the other. So, for example, the Additional Protocol admonishes that signatories should, "to the maximum extent feasible . . . avoid locating military objectives within or near densely populated areas" (Art. 58). But the language of other provisions (such as Art. 57, avoiding "incidental loss of civilian life, injury to civilians and damage to civilian objects") suggests that failure by one side to respect this obligation has no effect on the other. So if one side hides its missile launchers in civilian neighborhoods--or in the schools, hospitals, and religious and cultural sites supposed to receive special protection--the other side is still obliged to avoid attacking. In other words, by a literal reading, the Additional Protocol rewards those who use civilians as human shields. That is consistent with provisions granting protected status to guerrilla and terrorist forces, embracing those who defy the laws of war by blending in with--and thereby endangering--the surrounding population.

If you can get past these objections, it may then seem quite easy to invoke various provisions in the Additional Protocol to show that major Israeli actions were "disproportionate" to what even critics concede was a legitimate Israeli claim to undertake some sort of defensive action. Among other things, the 1977 Protocol admonishes that when "several military objectives" may provide "a similar military advantage," states must choose the attack "which may be expected to cause the least danger to civilian lives and to civilian objects" (Art. 57).

Yet there is something quite strange in this line of argument, too. The relevant provisions in the Protocol deal with "military advantage"--that is, tactical aims. The real issue is strategic: What would bring "victory," or how should "victory" be defined? At the strategic level, if you measure the response by the scale of the provocation, you reward aggressors by allowing them to control the scale of the response. Object to Germany's sinking of passenger ships in the mid-Atlantic? We might retaliate by seizing some German ships in U.S. ports. Object to Japanese attacks on U.S. warships in Hawaii? We might even the score by attacking a comparable number of Japanese ships somewhere else.

What is missing, of course, is the thought behind the old-fashioned expression "an act of war": Germany's resort to unrestricted submarine warfare in 1917 and Japan's attack on Pearl Harbor were seen as provocations that had to be met by all out war. The point isn't that we necessarily had to fight an inhumane war--though a war that culminated in the nuclear devastation of two Japanese cities was not exactly fought by Hague standards (as even the blockade of food shipments to Germany in the First World War departed from Hague standards). The larger point is that once you get into something called "war," you are trying to impose your will on the enemy and not simply engaging in tit for tat.

It is one thing to engage in punitive raids, though even punitive raids make sense only if the response can be more painful than the initial attack. Otherwise, a very constrained response risks inviting future attacks at the enemy's discretion. At some point, a full war goes beyond such skirmishing. War is, in effect, a struggle over the future relations between the warring parties and which side's standards for that future will finally prevail. And as the world wars proved, war is sometimes a quite effective answer to the original dispute. Nobody has been troubled by Japanese or German aggression in many decades.

There are all sorts of complications, of course, when "war" involves a terrorist force, like Hezbollah, which is not even a state--though it is clearly an instrument of state policies formulated in Damascus and Tehran. It may well be that Israel's response will not, in the end, enhance its own security. But that is, at the strategic level, a risk in every war. More often than not, one side emerges from war worse off than if it had not fought in the first place. That is what makes war decisive--and also less common than small skirmishes.

T
he relevant question, if you want to be legalistic, is not whether resort to war is sound policy but whether it is within the rights of legitimate state conduct. The question is whether Israel's actions are within the range of what our own Declaration of Independence (which was, after all, justifying resort to war) called "things which independent states may of right do." The relevant legal question, to put it more precisely, is whether standards can be changed as the result of treaties that are rarely invoked, less often observed, and not ratified by the parties to the actual conflict.

Condemning the scale of Israel's response does make some sense, as everything else argued by the critics makes some sense, if you view the issues in the light of domestic analogies. We allow private individuals to use force against, say, someone who breaks into a private home--but no more force than is required to repel or disable the intruder. Some states do allow homeowners to use guns to defend themselves, even if the resulting act of self-defense proves fatal to the intruder, but other states impose more restrictions on "defensive gun use" (including restrictions on access to guns in the first place).

Whatever one might say about moral claims to self-defense, most of us, most of the time, acknowledge that the binding law is the law enacted by the state legislature, even though the legislators who voted for that law may be disproportionately from low-crime districts and lacking therefore an adequate understanding of what is really at stake for residents of the most dangerous areas. Homeowners are not exempted from the relevant state law just because they disagree with it. In the domestic setting, we accept that the right to self-defense is determined by a constitutional structure, and the rules are the rules, including the rules for determining the rules.

So it might seem entirely reasonable to condemn Israel's actions, if you think the Lebanon war takes place in the realm of what German commentators, following Jürgen Habermas, call Weltinnenpolitik--global domestic policy. What Luxembourg and Iceland and New Zealand and other nice countries (and their coalition partners in somewhat nastier countries) view as the proper standards will be the proper standards, and Israel must adhere to them, even if its enemies don't, because rules are rules and preserving the rules is more important than achieving any particular strategic objective of any particular state.

It all makes sense, in a way--particularly if you live in Luxembourg and never have to give any thought to your own defense, because others will see to it for you. Lots of Europeans like to think of themselves as citizens of greater Luxembourg. It happens not to be a luxury that Israel can afford, living in a region where some of the strongest states--notably Iran--are dedicated to its destruction. If Israel could not defend itself, what international authority would it call to provide protection from outside? The U.N.? That is the very body that established the "international force" in Lebanon that has, in effect, operated as Hezbollah's chaperone for the past quarter century, looking the other way as terrorists acquired a vast arsenal of missiles. Asking Israel to rely on the U.N. for its protection makes sense only if you think Israel has no more right to defend itself than the majority of U.N. members think it ought to have. This is not a very reassuring notion for Israel, given the U.N.'s record.

The United States is, in all sorts of ways, in a different position from Israel. What the two have in common, however, is not just many of the same enemies. The United States has a similar stake in resisting the assumptions that have come to prevail in much of the legal commentary on Israel's tactics in this war. For some reasons that are similar to Israel's and some that are almost the opposite, the United States also cannot regard its military options as if it were merely a greater Luxembourg.

Jeremy Rabkin teaches international law at Cornell University and is author, most recently, of Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton).