Rabkin on “The Fantasy World of International Law”

by Peter Spiro

Jeremy Rabkin has this piece in the Weekly Standard on what the latest Mideast conflict has to say about IL. As is true of Rabkin’s other work, it’s nicely argued and knowledgeable. Without getting into the substance of the particular issues (Rabkin’s take here hinges on classifying standards of proportionality as something other than customary international law to which Israel not otherwise bound), I take his point that it’s hardly surprising that Israel doesn’t meekly submit to IL arguments, given its precarious security situation. As Rabkin notes, these IL standards “all make[] 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.” (Perhaps the most articulate exponent of what I call sovereigntism, Rabkin has been known to dismiss IL generally as “fine for the French” but not for the rest of us.)

But Israel is in a highly unusual situation in the current global context; more places these days are like Luxembourg, places in which IL can and is increasingly governing behavior on the ground. So whatever the weakness of IL norms in the context of the Israeli-Palestinian conflicts, it doesn’t show IL to be a fantasy, just that (like all other legal regimes) it isn’t amenable to perfect application or enforcement.

http://opiniojuris.org/2006/09/05/rabkin-on-the-fantasy-world-of-international-law/

6 Responses

  1. I think one of the difficulties with new sovereigntists’ scholarhsip is that they fail to take a step back and contemplate the extent which everywhere would be ‘more like Luxembourg’ (except hopefully less tedious) if everyone submitted to international law. I think the example of Israel is a particularly germane one because, if you take a pure hypothetical, a terrorist organisation or paramilitary organisation that is engaging in battle of some kind with Israel does not have any guarantanee of compliance with international law on israel’s part. Indeed the use of torture, for example, by Israeli security services is hardly a secret. Thus there is no payoff for the belligerant from complying with international standards.

    The same was true of the IRA and UK, and when the ECtHR stepped in and laid out strict limits in terms of behaviour in interrogation etc… for UK security forces we slowly saw a softening of IRA attitudes and a move towards something more akin to compliancr (of course now the IRA complies more or less completely with the relevant int. law – the Belfast Agreement). I don’t contend that UK compliance with international legal standards was the only factor in this move (it absolutely wasn’t), but it could well have been a material factor. In fact former Council members of the IRA have been known to say that once the Brits started to treat them humanely they started to do the same in return. Reciprocity

    IL is a fantasy unless someone is willing to take the first step or take the initial risk. But once the initial capital is invested, the returns tends to be good. It’s the first step that’s the hardest

  2. Forgive the many many typos above….

  3. Fantasy, shmantasy. (I hope I got that right) Over the past few centuries or so many scholars have stated that international law is not really law, with varying degrees of theoretical support, yet here we are. I know of a great professor of international law who responded to this kind of claims by saying that whoever doubts that international law is really law should take a look at his checkbook – a rather brutally truthful answer if not in best taste. The ever-increasing relevance of int law cannot be denied, but what really gets me the most is when people compare an extremely sophisticated legal system, such as the US one, with the limited international one which to its merit and its detriment is actually trying to restrain the primordial prerogatives of sovereignty.

    All law is in a way a fantasy – it is a social construct, which humans create to regulate their lives in a civilized manner. If we do not believe in the law, it just won’t work. Take any other area of law, constitutional law most of all, which deals with raw power, and you’ll see that the system is running on faith as much as on coercion. We have the law precisely because we think we need it, and international law is no different. Old King Hammurabi in ancient Babylon could have just continued chopping people’s heads off, but no, instead he promulgated a code, so he could chop people’s heads off according to the law, and that’s what the idea od law is all about, sort of.

  4. I took the point of the Rabkin piece to be something else — that Israel was in compliance with the IL standards to which it was party; that it had chosen not to be party to other standards because those standards were “only good for Luxembourg”; and that it is silly for academics and diplomats to claim that Israel is bound nevertheless just because “nice countries” like Luxembourg and New Zealand think they should be.

    I also think that the criticism falls prey to the common error of treating IL as a unified whole. Laws of war are but one piece, and it is misleading to say that the European conception of proportionality governs Luxembourgian behavior on the ground, because Luxembourg is not involved in any relevant conflict where its behavior can be governed. Other areas of law (eg, trade law) are far more subject to controversy in Luxembourg where there actually is behavior to govern.

  5. It’s a tad ironic that Professor Rabkin is mocking Luxembourg for “never hav[ing] to give any thought to [its] own defense” when he’s making his arguments from the war-torn gorges of Ithaca, New York (fdelondras, if you want to see tedious).

    Rabkin goes on in his piece to say:

    “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.”

    Ah, yes, the halcyon days of the Boer War! Where real men and modern nation-states didn’t “hand-wring” about sending people off to concentration camps (they left that to the women.)

    All sarcasm aside, I found these points rather interesting:

    “The 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.”

    And then a sentence later:

    “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.”

    Skipping over the confusion about which is the relevant question for a moment, it seems as if Rabkin is elevating the question of whether Israel can wage their war over whether and how they should wage it, suggesting that the first question is legal and the other questions are mere policy.

    And there may be something to the notion that when critics are calling Israel’s policies disproportionate what they really mean is that Israel’s war is a bad idea. Rabkin ultimately demurs on the strategic success of Israel’s campaign by saying “[i]t may well be that Israel’s response will not, in the end, enhance its own security.”

    It seems as if Rabkin’s argument boils down to the fact that States have the right to engage in risky, maybe even foolish, wars under international law. Forgive me, for not finding that a persuasive model of the legal regime I’d like to live under whether in Luxembourg or Israel.

  6. Rabkin might have wanted to ask those military lawyers he conversed with a bit more about the rule of “proportionality” as it applies to the application of combat power. Had he done so, he most likely would have been informed that the United States has long regarded the articulation of this rule in Article 51 of Additional Protocol I as a reflection of customary international law. In fact, the last revision to the Army Field Manual on the Law of Land Warfare (FM 27-10), published in 1976 (one year PRIOR to AP I coming into force) included a statement of this rule as binding on US forces. The position of DOD has been since that time that this is a binding rule of custom, and the fact that the United States rejected Additional Protocol I has never detracted from this position.

    It might be fair to point out the challenge of application of this rule in the context of the contemporary battlefield, and that contrary to the term used to characterize the rule, the exact language prohibits “excessive”, and not “disprapportionate” collateral damage and incidental injury. However, it is simply invalid to suggest that this is a rule is applicable only as a matter of treaty obligation. On the contrary, it is widely regarded as a “fundamental” principle of the law of armed conflict, and is integrally connected with other principles that operate to mitigate the suffering inflicted on non-combatants.

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