The Wrong Trouble with International Law

University of Pennsylvania law professor Paul Robinson had a stinging, but somewhat confusing critique of the international law governing the use of force in yesterday’s WSJ.

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.

This is not actually a unique critique of jus ad bellum, the law governing when a nation may engage in the use of military force (as opposed to jus in bello) which is the law governing how that force is used.  I find Robinson’s critique of the rules of jus ad bellum persuasive as applied to countries in situations like Israel (or the United States). But I thought that the main critique of Israel’s actions recently by the UN was jus in bello, not jus ad bellum, e.g. that regardless of whether Israel had the right to strike back, when they did strike back they did so without adequately trying to minimize noncombatant casualties (see Goldstone’s NYT op-ed here).

Now I think there are problems with Goldstone’s analysis on this front as well.  Wasn’t there lots of evidence of Israeli attempts to minimize civilian casualties? And what does the law of war say about attacking combatants who are shielded by noncombatants?  But that is not the  critique Robinson offers.  Robinson’s argument, while persuasive on some levels, is simply not responsive and therefore does not really do much for Israel’s defenders.  As Kevin’s post suggests, Israeli defenders (while their heart is probably in the right place), are simply not making much headway if they offer sloppy or misdirected defenses of Israel’s actions.