Israel and the Trouble With International Law

[question everything]

SEPTEMBER 22, 2009

Israel and the Trouble With International Law
Many restrictions on the use of force against aggressors make no moral sense.

By PAUL H. ROBINSON

Last week the United Nations issued a report painting the Israelis as major violators of international law in the three-week Gaza war that began in December 2008. While many find the conclusion a bit unsettling or even bizarre, the report's conclusion may be largely correct. This says more about international law, however, than it does about the propriety of Israel's conduct. The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.

Article 51 of the U.N. Charter forbids all use of force except that for "self-defense if an armed attack occurs." Thus the United Kingdom's 1946 removal of sea mines that struck ships in the Strait of Corfu was held to be an illegal use of force by the International Court of Justice, even though Albania had refused to remove its mines from this much used international waterway. Israel's raid on Uganda's Entebbe Airport in 1976 — to rescue the victims of an airplane hijacking by Palestinian terrorists — was also illegal under Article 51.

Domestic criminal law restricts the use of defensive force in large part because the law prefers that police be called, when possible, to do the defending. Force is authorized primarily to keep defenders safe until law enforcement officers arrive. Since there are no international police to call, the rules of international law should allow broader use of force by victims of aggression. But the rules are actually narrower. Imagine that a local drug gang plans to rob your store and kill your security guards. There are no police, so the gang openly prepares its attack in the parking lot across the street, waiting only for the cover of darkness to increase its tactical advantage. If its intentions are clear, must you wait until the time the gang picks as being most advantageous to it?

(snip)

Yet that is what international law does. From 1979-1981 the Sandinista government of Nicaragua unlawfully supplied arms and safe haven to insurgents seeking to overthrow the government of El Salvador. Yet El Salvador had no right under international law to use any force to end Nicaragua's violations of its sovereignty. The U.S. removal of the Taliban from Afghanistan in 2001 was similarly illegal under the U.N. Charter (although it earned broad international support).

An aggressor pressing a series of attacks is protected by international law in between attacks, and it can take comfort that the law allows force only against its raiders, not their support elements. In 1987, beginning with a missile strike on a Kuwaiti tanker, the Iranians launched attacks on shipping that were staged from their offshore oil platforms in the Persian Gulf. While it was difficult to catch the raiding parties in the act (note the current difficulty in defending shipping against the Somali pirates), the oil platforms used to stage the attacks could be and were attacked by the U.S. Yet these strikes were held illegal by the International Court of Justice.


(snip)

Mr. Robinson, a professor of law at the University of Pennsylvania, is the co-author of "Law Without Justice: Why Criminal Law Does Not Give People What They Deserve" (Oxford, 2006).

Printed in The Wall Street Journal, page A25

http://online.wsj.com/article/SB10001424052970204488304574424872677357720.html

[bemildred]

1. Not a professor of international law I take it.

He could at least make the distinction between the laws of war (which is what he seems to be attempting to discuss) and international law in general, a much broader subject, but no such luck. He also seems to conflate the UN charter with "international law", which is also inaccurate.

[question everything]

3. You do not comment, however, about the specifics

that nations are not allowed to defend themselves.

The report, for example says it could not "establish the use of mosques for military purposes or to shield military activity," despite widely available real-time video evidence to the contrary.

And Christine Chinkin, who was part of the panel wrote in January that Hamas's rocket attacks on Israeli civilians did not "amount to an armed attack entitling Israel to rely on self defense."

Would FDR and Churchill been charged because the bombing of German industries and cities killed civilians in World War II?

Will the U.S. and NATO in Afghanistan - where civilians are also sometimes killed in the course of anti-Taliban operations - be next?

[bemildred]

4. You seem to have a vigorous interest in those subjects.

I suggest you comment on them yourself. I was just pointing out the OP's argument is somewhat confused.

[pennylane100]

2. Well I am no authority on international law

but it seems that both sides are guilty of war crimes. I do not see any way for there to be peace in this region because there seems to be no middle ground between them.

The Palestinians will never stop fighting because they think the land belongs to them and the Israelis keep taking more of it because they believe it is their homeland. I wonder why it is called "The Holy Lands"