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Tuesday, September 22, 2009

The law is an a**

In Charles Dickens' Oliver Twist, the character Mr. Bumble is informed that "the law supposes that your wife acts under your direction" and Mr. Bumble famously responds, "the law is an a**."

In Tuesday's Wall Street Journal, University of Pennsylvania law professor Paul H. Robinson argues that the Goldstone Commission applied the correct legal standard to Israel's Operation Cast Lead, but that the law itself is not suitable for allowing countries to defend themselves.
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?

American criminal law does not require that you wait. It allows force if it is "immediately necessary" (as stated in the American Law Institute's Model Penal Code, on which all states model their own codes), even if the attack is not yet imminent. Yet international law does require that you wait. Thus, in the 1967 Six Day War, Israel's use of force against Egypt, Syria and Jordan—neighbors that were preparing an attack to destroy it—was illegal under the U.N. Charter's Article 51, which forbids any use of force until the attack actually "occurs."
Robinson is critical of Article 51:
Because international law has no enforcement mechanism, it is almost wholly dependent upon moral authority to gain compliance. Yet the reputation international law will increasingly earn from its rules on the use of defensive force is one of moral deafness.

True, it will not always be the best course for a victim of unlawful aggression to use force to defend or deter. Sometimes the smart course is no response or a merely symbolic one. But every state ought to have the lawful choice to do what is necessary to protect itself from aggression.

Rational people must share the dream of a world at peace. Thus the U.N. Charter's severe restrictions on use of force might be understandable—if only one could stop all use of force by creating a rule against it. Since that's not possible, the U.N. rule is dangerously naive. By creating what amount to "aggressors' rights," the restrictions on self-defense undermine justice and promote unlawful aggression. This erodes the moral authority of international law and makes less likely a future in which nations will turn to it, rather than to force.
In this context, it seems that perhaps the best response to the Goldstone Report would be for Israel to claim that its response was less in violation of international law than the responses of other countries in similar situations. While that would still leave Israel in violation of international law, it would accord with the reality that international law sets an impossible standard and that countries must violate it in order to protect their citizens.

On the other hand, I would argue that firing 7,000 rockets at Israel since 2005 would make Israel's response self-defense even under the UN charter.

The picture at the top is a group of Hamas terrorists in a weapons tunnel.


At 12:39 PM, Anonymous Anonymous said...

Similarly in Hebrew, you have the words:

"Medinat Chok"

meaning "a nation of law",

versus the similarly sounding:

"Medinat Choken"

meaning "a nation that rams the law up your ass like an enema".

We in the modern bureaucratic State of Israel know what that means and feels like. ;)

At 4:09 PM, Blogger Ron said...

So, under Article 51, what about the U.S. attack on Iraq in 2003?

At 7:43 PM, Blogger NormanF said...

Ron, under Carl's scenario, the US attack on Iraq in 2005 was illegal. The only reason the US escaped censure was its veto in the UN Security Council. Article 51 of the UN Charter was drafted in response to the Nazi and Japanese aggression during World War II. But in reality, no country in danger can wait until it is attacked to respond. Israel was attacked and did respond in accordance with Art. 51 in Gaza but was still condemned for violating international law.

Yes, the law is an ass even if you do comply with it.


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