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.