I believe international law matters. When I read the Yoo torture memos, the arguments underpinning Guantanamo Bay, the white-wash of superior officers and civilian authority over Abu Ghraib, the dissenting reactionary opinions on the seminal Supreme Court decisions in Hamdan, Hamdi, Boumediene, etc. - I was struck by how similar the Neocon (for want of a better categorisation) arguments were to the discussion that took place in Europe, particularly Germany, around WW I: At the time, legal positivists argued that there was no international law; that the constitution was supreme and could not be limited by international law; that the constitution was whatever the words said - change the words, change the constitution.
These academics were not Nazis; but when the Nazis came along and changed the constitution to deprive Jews - German citizens, decorated WW I veterans, internationally renowned authors, academics, artists and musicians - of their dignity, their citizenship, their property, their liberty, and then their lives, these academics said: It's legal.
This is the danger. This is why I care. This is why it's important.
In the past few days, I have posted frequently on Israel being the Occupying Power in Gaza under international law, in response to much ignorance on the subject.
The level of argument against me in the discussions - to the extent it has been coherent - has been on two levels, both of them disconcertingly similar to the style and level of argument employed by White House staffers like torture-is-fine Yoo and the reactionaries on the Supreme Court:
- Why worry about what Israel's doing, Hamas are terrorists.
- There's a loophole or technicality in international law that allows Israel to do this.
The "Hamas are terrorists" Argument
So what? This is the ultimate non-sequitur. To paraphrase John McCain (before he flip-flopped): International law is about who we are. International law protects the weak, not the strong; the strong rely on "might makes right".
Arguing International Law
I find most of these posts irritating because they take an isolated factoid out of all context, demand proof that the sky is blue, and generally argue in blissful ignorance of any of the principles or terminology of international law. I suppose this is the result of 8 years of Bushies finding the argumentative power of aggressive ignorance. International law is an advanced academic discipline, and hecklers just make fools of themselves.
- International law is the "usages established among civilised peoples" (e.g. in Art. 158 of Geneva Convention IV). Whatever you may think about the political correctness of that notion, it is the law.
International law is therefore at its core customary law - the writings of respected academics and the diplomatic usage of the world's nations. Treaties also constitute international law, but tend to supplement, not replace customary law. Treaties tend to be applicable only among members BUT: once a treaty has become fundamental to the usages established among civilised peoples, the provisions of a treaty enter into customary law and become applicable to all, member or no. This is true for instance for the Geneva Conventions.
- International law is not tax law The fundamental question in interpreting international law is its purpose. The purpose of humanitarian international law is the protection on non-belligerents. If an interpretation results in protection of non-belligerents, it is correct. If is doesn't, it's wrong. This means that the traditional past-time of lawyers of looking for loopholes and technicalities falls flat in international law. It's not just bad form or debatable - the approach is wrong, so the result will be wrong.
This feature is linked to the fact that there is no ultimate authority, no "international law supreme court", no enforcement authority for international law. International law is ultimately about morality.
- International law deals with facts International law imposes obligations on those capable of (if not willing to) fulfil them. I'm sure there will be arguments: But Hamas can fulfil the obligation of protecting Gaza civilians! Maybe - but the consequence of this argument in international law would be to acknowledge Hamas as a state actor; therefore, Hamas' rocket launchers would be soldiers, who would then if captured be entitled to PoW status. That to me is an abhorrent result - the rocket shootists are terrorists, pure and simple. Terrorism is an international crime, not an act of warfare.
Applying international law to the Gaza situation (and with acknowledgement to Gisha and their Disengaged Occupiers):
Israel may have demilitarised Gaza and transferred local administration to a local authority, though the scope of authority of the local administration is wholly and unilaterally defined by Israel. Israel directly controls one land border of Gaza and indirectly the other; Israel controls the airspace and the shoreline; Israel decides who enters or leaves (and incidentally disregards US passports of individuals Israel considers Palestinian); Israel controls the finances. Israel can exert force at will and insert forces at will, to the exclusion of other state actors.
Some protest that "occupation" requires boots on the ground. It is correct that is the traditional method of "belligerent occupation" (as the legal term goes), but there is nothing in international law that elevates this to a technical requirement. Conversely, there can be boots on the ground without constituting an occupation; in Iraq, at least since 1. January, the US troops are present under a Status-of-Forces treaty, not by way of belligerent occupation (at least de iure; de facto practice may yet belie that).
Since Israel is the Occupying Power, it has the obligations of such a power under Geneva Convention IV - I will leave you to read it, it is informative.
Bottom line, though, is that the current events in Gaza are not a war - they are, for lack of a better term, internal Israeli matters (though still under international law due to the fact of belligerent occupation and hence the applicability of Geneva IV).
- Can international law decide whether Israel survives or not Of course it can't. There is no doubt that Israel's existence is more precarious than many other nations', and that Israel has a legitimate argument for an abundance of caution. But Israel's governments of the day have used this argument for too long as a free pass for any number of violations of treaties, promises and international law, so that it now has an enhanced responsibility to make its case. Are the current actions really necessary to ensure the survival of Israel?
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Why do I care - I am a Protestant Swiss, I have no Jewish or Israeli or Muslim or Arab or Palestinian family. I have not been to either Israel or the Occupied Territories. I am married to an American and we have children, so I do care about the discussion in the US. International law was part of my PhD and I am an officer of the armed forces of the depository nation of the Geneva Conventions.