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When I teach courses in either diplomatic or constitutional history, I try to include small segments on international law, which often falls between the cracks and doesn't get covered at all at the undergraduate level. (I admit that I raise the topic also because I'm willing to employ any excuse I can get to assign the work of Dorothy Jones.)
Broadly speaking, two separate strands of international law have developed over the past four centuries. The first, tracing its roots to Grotius, was fleshed out by TR and William Howard Taft in the early 20th century, and envisioned international law as a way to resolve the myriad technical disputes that had emerged in an increasingly globalized world, and also as a way for the Great Powers to make face-saving stand-downs (think of the US-Canada dispute over the Yukon in the early 20th century). The second strand, which arguably can be read into the work of Vattel, was fleshed out by Woodrow Wilson, and saw international law as straddling the line between diplomatic and legal issues, whether in the minority-rights treaties of the post-WWI period or in the post-WWII stress on human rights.
These two strands came into conflict in the International Court of Justice case regarding the Israeli security fence. The ICJ had a variety of ways it could have avoided hearings this case. Had it wanted to be ambitious, it could have maintained that self-defense is an inherent national right, or that the Palestinian Authority lacked standing to bring the case, as it had demonstrated itself either unwilling or unable to comply with international law by failing to prevent suicide-murderers from launching attacks against Israel from inside its territory. I never really expected the ICJ to take such a course, obviously. It did, however, seem possible that it would follow the guidance of the US and several European governments, and take a procedural out on the grounds that the matter involved primarily political/policy issues rather than a question of international law.
According to leaks in this morning's Ha'aretz, the ICJ adopted neither approach, and instead issued a decision strongly critical of Israel. The most breathtaking assertion:
the judges were"not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives."
In other words, Israel does have a right to protect itself from suicide-murderers, but the Sharon government chose the wrong methods for doing so.
Alas, the judges do not give us the benefit of their wisdom as to which tactics the Israeli regime should have followed to prevent terrorist attacks. It's nice to see that they're refraining from involving themselves with political questions.
Once you used the term "apartheid wall" you lost me. That is not what it is. Further, since the wall has always been the preferred solution of the peace left, it reveals your ignorance. We've reached endgame once you pull out that attempt to chill all conversation. You compund it by saying deterrence does not work. In fact deterrence almost alwayws worked. It worked throughout the Cold War, and it certainly is working now. Note how many suicide (or murder, as many prefer) attacks have come from Gaza versus WEest Bank since September 2000, and how many have ome from West Bank areas closest to the Wall. It does work, and when completed it will work. Further, of course, Israel is responding to a court decision -- that in its own country, where Palestinians can actually bring suits (how many can do so in Arab Natiuons? Hell, how many can do so in the Palestinian Authority?), and where they did in this case an got the court to demand changes in the wall. But they will not respond to the vacuities of the ICJ. I stand with them on that, because they are right.
dc
The ICJ was not set up just to adjudicate between sovereign states. If you read the UN Charter section setting up the Court (Article 38 maybe?...not too sure), it allows the Court to adjudicate between nation-states who recognize the jurisdiction of the Court (if you are a signatory to the UN Charter you recognize the jurisdiction of the Court, unless you take the proper procedural steps in a certain case to withdraw your recognition of the jurisdiction, which NO state did) as well as special cases in which parties are recognized as state parties or representatives (of which the UN has designated the PA as having this special standing). So your argument regarding countries making arguments why the ICJ should not take the case is nothing more than political maneuvering in my book for if they had a true gripe they could have gone through the proper procedural steps to withdraw from the jurisdiction (as the US belatedly tried to do in the Nicaragua case one they realized that they were screwed and in the wrong). Would you actually speculate that someone such as I actually is more aware of the judicial procedures of the ICJ than these governments? I certainly would not. Why then would they refrain from taking the proper steps to withdraw from the jurisdiction as opposed to making arguments before the Court? By doing this they were implicitly recognizing the jurisdiction of the Court and simply stating a political position. The Court was still left to make the decision. This was a conscious surrendering of sovereignty to the ICJ. A procedural matter, yes, but a conscious decision that is rather hard to contradict.
By the way...expert? I would never call myself such a thing. The moment I call myself an expert is the moment you know I do not know what I am talking about. A bit more versed than others? At times...but an expert? Never.
By the way...Isreal should have gone through proper channels as well. Are you telling me that you could not see this case coming from as far back as when the apartheid wall was beginning to be built? They could have withdrawn from the jurisdiction if they felt so strongly. To not show up and not make an argument shows two things: A) they knew that they had no case and were going to lose if it got past the jurisdictional issue and simply wanted to make the political statement and B) they have no respect for the authority of international law, instead choosing a failed nation-state power interpretation of law and hoping that the US will veto any resolution in the Security Council (which they will). THis was a carefully thought out political power decision that has little to do with the legal heads of argument or procedural issues. THey were in a losing case and knew it.
Mark, you seem to be saying that this was the first time that the Court made this sort of ruling interpreting Webster. Webster's definition was the prevailing legal standard of the time and has been sustained and developed over time through precedent. I am sorry if I did not clarify that enough. Starting from the mid 1850's one can find many cases in international, regional, and even state criminal law dealing with self defense. If you go into US state criminal cases dealing with self defense one can find Webster's definition supported and invoked. Once one reaches the international realm, it gets dicier because history becomes that much more important. It is hard for the Israelis to show that they were victims of systematic abuse and terrorism that resulted from no fault of their own and that they had no hand in creating at least the conditions that allow it to thrive. One can make cases that Israeli oppression helps foster terrorism and that the terrorism of the Palestinians helps foster Israeli oppression. hence the need for the objective international legal forum, the ICJ to help adjudicate the violations of human rights.
Well, I am a bit surprised that as our international law expert you did not point out this little tidbit that seems to me to be just a bit germane: The ICJ was set up to adjudicate disputes between sovereign states, , and even then only when both parties to the dispte ask it to do so. The Palestinian authority? Not a sovereign state. Israel? Specifically asked the ICJ not to interfere.
but of course that was just israel being intransigent, right? Well, if by israel, you also mean the entire EU (not exactly Israelphiles) and 30 individual countries (US, Australia, Canada, France (FRANCE!!), germany, Russia, and Great britain among others also asked the ICJ not to interfere, which is precisely what they did, then they came up with a morally, intellectually, and legally vacuous opinion. Breathtaking in its audacity, really.
dc
mark safranski -
7/13/2004
Chris wrote:
"Mark, although you may be right about what Webster meant...and one can raise questions regarding the historical and political situation of the period and how it reflects today, that is not a legal argument in any way shape or form "
Chris, what role does precedent - and by that I mean the historical actions of nation-states in applying/formulating international law - play here ? You seem to argue that what really matters in IL is the abstract argumentation, not the actual practice of states as it has developed since Westphalia. Could you clarify please ?
Assuming that I am roughly approximating your position and those who take a robust, broad and binding view of the ICJ's powers - you are basically putting forth a position that nation-states have ceded vast powers to an international ulema of IL scholars, jurists and activists.
Secondly, if you or the ICJ lift Webster's argument out of his historical context in IL reasoning to get the result you like then you are si,mply misrepresenting Webster while appropriating his argument's precedential authority for your position - i.e. - pushing an ideology, not following the logical path of the argument.
chris l pettit -
7/13/2004
I addressed it in an earlier post weeks ago and I think we can go round and round about it if we like...
I will find the post shortly, but in terms of the basis, I think we end up arguing theory versus actuality. Deterrence does not work, or is very ineffective (pick your poison) in actual practice. I am not sure how many times we have to have this proven historically before people actually realize it, but this is yet another circumstance. Israel will continue to be attacked until it ends its oppressive actions. The apartheid wall will make no difference. It is the same silly logic that has us holding on to nuclear weapons that drives this insane ideology. In theory, deterrence has some merit...in reality, there is absolutely no evidence of success anywhere in history. Oh...I should not that goes for the death penalty, drug war, and jails in general. Yet another failed ideology of US "experts."
The most prominent case that I can cite would be the Nuclear Weapons Advisory opinion of the ICJ (and no I am not citing Judge Weeramantry's dissent). The majority of the Court agreed upon this definition. It has likewise been upheld in different decisions globally.
DC, you are right in arguing that the standard is ambiguous in terms of political philosophy and diplomatic thought, but as a legal standard, Webster's definition has not been overturned in any case and still is the defining legal standard. There is a great text on the topic...give me twenty four hours and I will furnish the title for you. I believe John Dugard was the author although don't quote me on that yet. As it stands though, until there is legislation or a case that you can furnish that overturns or redefines the topic, in a strictly legal sense, the definition is as it stands. Of course there will always be those in disagreement (which I tend to think you would be in agreement with) but that does not mean that the legal standard is not what it is. how many times have I been told that citing dissenting opinions is not hard law...both in law school and in this forum?
Mark, although you may be right about what Webster meant...and one can raise questions regarding the historical and political situation of the period and how it reflects today, that is not a legal argument in any way shape or form. It becomes another political or ideological argument clouded by personal bias. how many times do I have to clarify that law is our best effort to attempt to as objectively as possible overcome the biases that exist when such arguments are made. I may add that speculation on any of our parts as to what Webster actually meant is shaky at best...although from the historical documentation of the matter and resulting legal squabble that is available, it was pretty clear that Webster was emphasizing that there must be no time for rational thought or other measures for self defense to be invoked. This is the concurring opinion of the Human Rights tribunals, International Court of Justice, and the majority of international law scholars. If you gentlemen know better than them, my hat is off to you, but I would hazard a guess that they just might have a bit more authority in academic circles.
I don't really think Webster was implying in his argument that if you can't catch the aggressor before he completes the blow then you are automatically without any legitimate recourse to the use of force . That legal logic is an *incentive* to launch surprise attacks, not a deterrent.
Derek Charles Catsam -
7/12/2004
Wait a second, that Daniel Webster proposed a definition for self defense does not mean that it follows that his is the prevailing definition. It certainly is not the prevailing legal standard -- that standard is certainly up in the air, which is why some women have gotten away with murdering battering spouses, for example, or why one can in most states attack an intruder who has not done you actual physical harm. In international law, as you must know, actual attacks themselves can be seen as acts of war, and reacting to acts of war is justifiable defense. In any case, someone who is relying on daniel Webster and claiming him as the last word on current prevailing definitions is graspinga thin reed. Someone who prefers definitions, flawed ones at that, over the reality that Palestinians are targeting Israeli civilians and Israel is going to defend itself, ha smore problems than i care to note. however, it is worth saying that the Wall is intended to prevent bombers from entering israel in hopes that israel can then engage in less action, not more, when it comes to the palestinians whgo are murdering them. I do not know what daniel Webster has to say about that, but if you really believe that his is the prevailing definition in international law, maybe you can ask him.
As for your "authority to point out fallacies," would that that were what you are doing. Instead you are asserting that others on this post are ignorant of international law. That is what you said -- calling someone ignorant, especially one who is not ignorant of the topic at hand, is not "pointing out a fallacy." As for "experience and scholarship" in international and human rights law, I suppose it depends upon what you mean, but on issues of human rights, law, politics, and international relations, I do not hold you in any higher esteem thaqn many who post here, including KC or myself. I am not impressed by your attempt to establish argument by authority. I am certainly not impressed when such a supposedly esteemed scholar believes that calling others "ignorant" is "pointing out a fallacy."
dc
chris l pettit -
7/12/2004
Not sure if you guys are still looking at this thread but...
SELF DEFENSE - legal standard articulated by Daniel Webster in a conflict with Britain over actions in Canada...it ONLY allows actions when there is no time for rational thought and other actions...like when a missle has been shot and is headed at you...or when a suicide bomber shows themselves and is about to pull the trigger on his vest.
Don't like it? Change the legal standard...until then you have to respect the law as it exists and as the international community recognizes it. Unitl then it all comes down to ideology.
DC...I have plenty of authority to point out fallacies in Dr. Johnson's analysis, as they have to point out the errors in mine. Last I checked, I still have more experience and scholarship in international and human rights law than many posters on this blog, and actually practice in the area. This is not a pissing contest, it is an attempt to root out ignorance of a topic.
Chris --
Will you cut the crap about those who disagre with you not understanding international law? Your overweening and unearned condescension is both constant and grating. We get international law. We just don't agree with much of what it does, especially when so politically driven. You have not earned the right to patronize me. You sure as hell have not earned the right to patronize KC Johnson on matters of legal and political history.
dc
Robert KC Johnson -
7/10/2004
Self-defense is the key question here. By any standard of international law, self-defense is a right that all states possess, but there's nothing in the ICJ decision that suggests the Court was willing to give Israel that right. As Mark points out, the decision implies that the Israeli government needs to accept the suicide-murderers as a fact of life. That's an unreasonably request to make of any regime.
mark safranski -
7/10/2004
Hi Chris,
The whole dispute essentially revolves around acceptance of Israel's existence ( genuine acceptance, not pro-forma acceptance as a waystation to later revanchism). Once that is a reality as a premise the deal will get done. The rest is details and horse-trading.
The PA since Oslo has been unable or unwilling to curb terrorism making it useless as a negotiating partner for Israel. This does not mean that Israel has kept up all of it's end of the bargain but to say that the basics for a successful negotiation do not yet exist. You cannot negotiate with bad-faith actors or powerless entities and reach and end-game whether we are discussing a labor dispute or a peace treaty.
Is Sharon cynically using the fence as a land-grab excuse ? Of course he is but Sharon would not have been electable in the first place had the second intifada not concentrated on killing Israeli civilians. The ICJ is essentially asking Israel to just accept suicide-bombing as a fact of life while outlawing the least intrusive means of preventing them - a ridiculous request of any government and one that no government with any options would honor. Not ours, not the French, China's - anybody.
The ICJ gave a nod to self-defense in principle but then eviscerated it in practice ( the compensation aspect was reasonable and logical however)
also...speaking of positive obligations...kind of interesting that we focus on the positive obligations of the Palestinians instead of the positive obligations of the Israelis to those they have occupied and oppressed for decades or the positive obligations of the US to the international community (or single nations if you prefer) in our economic methods, humanitarian efforts, social and cultural rights, civil and political rights...on and on...almost all of which the US has failed completely or done so little as to be negligible.
We really do need to get over ourselves...
CP
chris l pettit -
7/10/2004
Sorry guys, but I have to be a little saddened by the lack of respect for the ICJ and general ignorance (Buddhist definition) shown of internaitonal law in general.
Dr. Johnson, the other guys know this, but I am closely associated with a Centre for Peace Education and Research that is run by a former VP of the ICJ, and I do a great deal of work in human rights law internationally. Your analysis of international law is simply incorrect. Hugo Grotius was reacting to the THirty Years War...and for a long time (much of the period you speak of leading up to Wilsonian statecraft) international law was viewed as the utopian view of the period. The fact is that the Thirty Years War first allowed the idea to be born in the West (it had existed in Islamic Jurisprudence for 800 years prior and longer than that in the Far East) and that it took the death of millions in WWI and II for it to become a halfway cogent system in the form it exists today...or existed before Reagan, BushI, Clinton and now Bush II have succeeded in generating opinions such as those articulated above and demolishing most of its effectiveness.
The reason that the decision was highly critical was because it was a slam dunk case once the court got past the illegitimate argument about jurisdiction. The Israely government is in violation of most, if not all human rights and humanitarian law documents. The jurisdiction issue is a non-sequiter. if you read the decision, there is ONE judge who opposes the jurisdictional grounds, and not even on the philosophy most peple have advanced. Israel is a signatory to the UN Charter...Palestinians have been recognized as a state actor apparatus by the entirety of the UN...therefore both parties have agreed to submit to the jurisdiction of the Court. If you don't like it, denounce the UN Charter, pull out of the UN, and declare yourself unwilling to do anything but protect your own selfish interests. The sad thing is that this will probably strike another blow to the legitimacy of international law due to the hypocrisy and idiocy advocated by the US and Israel. Whatever consequences will be advanced by the UN will be vetoed by the US in the UN. The UN is a fatally flawed system because of the Security COuncil and specifically the US. need I remind you that the US is the ONLY nation to have been found guilty of crimes against humanity...and then ignored it in one of the most dastardly moves in history...and then vetoed the UN resolution condemning it and requiring compensation to the victims of the US atrocities in Nicaragua?
Sorry that I am a bit emphatic about this, but we need to wake up and realise that the only way this will ever end is to join the international community. You harken to the ignorance of history of the court. I find that offensive and full of shit if I am allowed to be so frank. Most of the individuals on the World COurt, outside of those political appointees of the P5, are absolute judicial heroes and some of the greatest legal minds available. We would be so lucky to have them replace the jokers in our own courts. I would encourage you to review your own history of the topis. In any objective analysis, both parties in the conflict are dead wrong...hell, they are the same people when we really get down to it. The state of Israel is a fundamentally flawed ideology to begin with...hell the whole nation-state idealism is absolutely absurd in this day and age. What bothers me is that such emminent historical scholars are unable to see such a thing.
The reason law exists is to prevent in the best way possible, ideological and "political" fallacies and debates like those raised in the case of the Wall. The Israelis and Palestinians will support their sides on ideological grounds. jews, Christians and Muslims have their religious grounds. History shows us NOTHING other than that both sides have utilized terrorism and oppression to get at the other side. The wall is illegal and immoral. Like it or not, the legal borders are those from 1967. If you want to argue ideologically, that is fine, but there is no legal argument in the issue. Ideologically, you run into the same problems that law is supposed to try and overcome. Your ideology is just that...yours. It has no right to be imposed on anyone else if it has no legal standing.
I am sorry to be so pessimistic, but I have little hope for this decision actually being implemented due to the despotic actions of the US at the UN. This is a great blow to human rights and international law...and those who support such a blow are sadly ignorant and uneducated in law and its direction. For if this happens we will simply continue the idiotic loss of life and desecration of cultures that has taken place. Grotius tried to find a better way after the fall of the monarchies and church. The UN tried to get nations to eliminate some of their sovereignty in the name of all of humanity. Globalisation is forcing us to acknowledge that we are all interconnected (something that Buddhism recognized 2000+ years ago and quantum theory is now proving to be true). Nothing we do is "sovereign" anymore...it is an outdated concept. I just hope that it will not take another world war or nuclear war for us to get our heads out of our asses and start learning history...insteadf of repeating it. From your comments, Dr. Johnson, I fear you may be an advocate of repeating it.
I ask you to please visit my organizations website http://www.wicper.org and look it over. The texts shown are great reads and would be illuminating, particularly "Universalising International Law" and "Islamic Jurisprudence: An International Perspective." I am well aware that one can argue against my legal realist/natural law perspective with a positivist, Machiavellian, power argument, but there is not a religious nor secularly ethical standard that supports such a stance. Basically the only individuals who can make such an argument without being totally hypocritical are those atheists who believe that we are only on earth to enhance ourselves until we die...and even they have problems, as my brother, who happens to be one, aptly demonstrates to his ethics classes.
Sorry to ramble and mean no offense. I am simply frustrated that such prolific scholars take such positions. Please visit the website and research a bit more on both the international law perspectives as well as the historical and get back to me.
"Is there, indeed, international law which obligates states to prevent their citizens from attacking the citizens of other states? I could certainly see that states might have the right to charge their citizens with crimes for conspiring to commit crimes, but is it a positive obligation?"
An excellent question. The answer is " yes ".
To build on Dr. Johnson's reply, a sovereign power allowing it's territory through explicit permission or neglect to be a launching pad for rebels, terrorists, mercs, pirates - any armed non-state actor - against another state is itself a casus belli. Either the sovereign is initiating hostilities or it is not really sovereign.
This is why we have a Logan Act - to clearly define such actions as criminal and why, for example, JFK wanted the Bay of Pigs Cuban paramilitaries based in Nicaragua. Or in the 19th century why the US was correctly blamed by Spain for the actions of the Filibusteros.
As for the ICJ, the majority of enlightened opinion is simply unhappy that the fence is strangling the ability of the intifada to kill Israelis because terror is the PA's trump card in forcing unilateral concessions from Israel. It's a decision that has much to do with politics and appeasing Arab sentiment and little to do with principle.
Which is why international law is a misnomer - it's not law in a " positive " sense. It only has real or binding legitimacy at the lowest common denominator, the points where all or nearly all nations ( esp. the great powers)are in agreement.
Robert KC Johnson -
7/9/2004
That, of course, is the rub: a wall within the 1967 boundary, as things stand now, would do little to protect Israeli security.
Jonathan Dresner -
7/9/2004
I disagree. I've been a proponent of some kind of constructive disengagement for a long time -- unilateral action which increases security without creating further distress can only help the process. I think the Wall, in abstract, a good idea.
But the specific placement is problematic, and I don't care whether Herzl himself approved it.
Robert KC Johnson -
7/9/2004
The obligation of a government to prevent its territory from being used as a launching pad for attack formed the key justification for the US war against Afghanistan, and, indeed, is one of the fundamental obligations of a sovereign state. The case can be made, of course, that the PA isn't a sovereign state, and therefore shouldn't have the obligations thereof--but both the ICJ and the UN have given the PA all the privileges associated with statehood.
I agree with Derek on the anti-Sharon nature of the decision. I was hoping that, as such a straightforward procedural argument existed for not involving itself in the question (that this is a policy dispute), the ICJ would defer action, but we probably shouldn't have been surprised.
Derek Charles Catsam -
7/9/2004
It seems as if every time the Wall comes up, this has to be said, but add the judges on the ICJ to the list of those woefully ignorant of the history they criticize: keep in mind that historically the Wall is not the concoction of the Sharon right, but rather of the "we need to put an end to this" left. I'd bet dollars to donuts that the judges do not know this. And I know, I know, we should suppose that the judges are merely attacking the idea and not the person purveying the idea. Unfortunately I do not trust that argument for a second. If Sharon decided to shower the West Bank with Rose petals, the judges on the ICJ and the critics of Israel would accuse him of trying to foment allergies.
dc
Jonathan Dresner -
7/9/2004
You write "Palestinian Authority ... had demonstrated itself either unwilling or unable to comply with international law by failing to prevent suicide-murderers from launching attacks against Israel from inside its territory."
Is there, indeed, international law which obligates states to prevent their citizens from attacking the citizens of other states? I could certainly see that states might have the right to charge their citizens with crimes for conspiring to commit crimes, but is it a positive obligation?
