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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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.

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).