Politics and International Law

Yaacov Lozowick
Yaacov Lozowick's Ruminations
02 March '11

http://yaacovlozowick.blogspot.com/2011/03/politics-and-international-law.html

Robin Shepherd last week wrote a delightful article at the Jewish Chronicle about how Obama has weakened the notion that Israeli settlements are illegal. His thesis is that if the UN Security Council is an important legislator of International law, and it just refrained from declaring the settlements to be illegal, apparently they aren't, or at least the case is murky.

Of course, anyone committed to the idea that the settlements are illegal will brush this aside by saying that the American veto which forged that outcome was pure politics, not legality, but that's precisely the point. If you operate in purely legal mode, you've got to accept the manner in which decisions are made and the tools defined for making them. If the decisions aren't to your liking or the tools malfunction according to your lights, you can go back to the sovereign (the electorate) and try to change things until you get to the result you'd like, and you may or may not succeed. Until then, however, you can't say the law is illegal, or the legal situation is illegal, or what have you. In the realm of international law there is no sovereign, which is an enormous problem, but there are rules and the position of the Security Council is pretty strong; there's no legal methodology to say that when the UNSC makes "wrong" decisions, they don't apply. Can't do that.

Of course, some of us find the entire discussion proves its own futility. International conflicts can only be resolved through politics (or war, a continuation of politics). There will be cases where the parties to the conflict agree, for political reasons, to arbitration by legal entities of rules. That's fine for them. (Israel and Egypt disagreeing over Taba, in the early 1980s, is a local example). There will be cases when they won't agree that way, but some other way - say, by ethnically cleansing respective regions until they can bridge the remaining gaps by negotiation, as in the former Yugoslavia. Or they may resolve the matter by one side winning and the other side losing, as between Tibet and China, for example. (In the Sakhalin Islands, the side that won didn't even do anything, except take advantage of the loss of the other side). Sooner or later conflicts end, when the parties decide they're over; international law and institutions can be useful tools, or not, but they aren't the reason the conflicts end.

Normblog, who probably has a higher opinion than mine of the role of international law, notes that the crimes of Gaddafi are rapidly re-awakening the humanitarian interventionist instincts which supposedly died out forever after the invasion of Iraq, a mere 8 years ago. Words like "forever" and "never" rarely mean what they're supposed to mean.

Finally, since I'm on the topic, Human Rights Watch yesterday published two admonishments to Israel and Hamas. Hamas, they pontificated, must stop firing rockets at Israeli civilians, because it's a crime. In a show of perfect balance, they also pontificated that Israel must investigate why when it responds to Hamas fire, civilians sometimes get hit. Now of course, no-one on either side decides what its interests are according to the lights of HRW, nor should they. Governments should be accountable to their electorates (this many not be the case in Gaza, it's hard to know), not to unelected and unaccountable individuals in New York. Yet the imbalance not mentioned in HRW's fake act of impartiality is that when Hamas tries to kill Israeli civilians this is a fundamental element of what Hamas is all about; when IDF actions cause civilian causalities among Palestinians, the Israelis investigate. They don't always investigate with alacrity, and often the results of the investigations indicate greater caring for Israelis and the troops that defend them than for the civilians of the enemy, and sometimes they need to be prodded, but that's the thing about legal systems: they are flexible enough to take account of political considerations, and the sovereign has to ensure they don't stray too far.

Just like international law can't. There's no sovereign, but also no such thing as fully objective impartial truth to be applied in advance to any situation.

Oh, and by the way, the HRW declaration about the bad things Israel does includes that ridiculous canard about how the 300-meter security zone Israel is enforcing along the border of Gaza covers one third of the arable land in Gaza. Some anti-Jewish libels never die, and they don't fade away, either.

Update: in January 2011 the United Nations Human Rights Council announced it was about to adopt a resolution praising Libya for its human rights record. I spoof you not.

If you enjoy "Love of the Land", please be a subscriber. Just put your email address in the "Subscribe" box on the upper right-hand corner of the page.
.