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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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.