International Law, Warfare, and Freedom of Speech

I'm not much of a fan of applying law to political issues, which is what the International Law Brigade is so busy doing these past decades. I spelled out my position here, back in 2007.

A few days ago Haaretz ran a long story about the International Law Department in the IDF, and how it fits into the picture. It's a fascinating article, especially if you set aside the newspaper's agenda (They're horrified by their findings). Among many interesting things in the article is the description of the inevitable result of turning warfare into a legal question: the army hires good lawyers, and they find loopholes. That what lawyers are for, after all, irrespective of whether you like Israel or not. The moment you start measuring actions of war with legal tools, you'll start measuring the actions of war with legal tools.

This of course emphasizes the utter silliness of all those pundits and journalists who chatter on and on about what is or isn't illegal in wartime: they mostly have no legal training, those folks, and even the few who do aren't using it in their reports, because if they were, the reports would inevitably resemble legal briefs, and no-one would read them except other legal types - not what the media outlets want.

Another thing about legal systems is that they develop. They evolve. They adapt. In short: they change. International law isn't good at this, because it lacks many of the trappings of a normal legal system such as a soverign, an elected legislature, law enforcement forces who are subordinate to elected executives and so on. Even so, however, they have to adapt somehow, so apparently they do so by a process of getting used to reality:

The dilemma of the gray areas and ILD's attempts to discover untapped potential in international law may perhaps explain the unit's great enthusiasm for providing legal advice to the army and the glint in advisers' eyes when certain terms roll off their tongue: "proportional equilibrium," "legitimate military target," "illegal combatants." "What we are seeing now is a revision of international law," Reisner says. "If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries. If the same process occurred in private law, the legal speed limit would be 115 kilometers an hour and we would pay income tax of 4 percent. So there is no connection between the question 'Will it be sanctioned?' and the act's legality. After we bombed the reactor in Iraq, the Security Council condemned Israel and claimed the attack was a violation of international law. The atmosphere was that Israel had committed a crime. Today everyone says it was preventive self-defense. International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy."

Did the attacks of September 11 influence your legal situation?

"Absolutely. When we started to define the confrontation with the Palestinians as an armed confrontation, it was a dramatic switch, and we started to defend that position before the Supreme Court. In April 2001 I met the American envoy George Mitchell and explained that above a certain level, fighting terrorism is armed combat and not law enforcement. His committee [which examined the circumstances of the confrontation in the territories] rejected that approach. Its report called on the Israeli government to abandon the armed confrontation definition and revert to the concept of law enforcement. It took four months and four planes to change the opinion of the United States, and had it not been for those four planes I am not sure we would have been able to develop the thesis of the war against terrorism on the present scale."

After Haaretz published this article in last weekend's magazine, a number of law professors at Tel Aviv University realized, to their utter horror, that the commander of the International Law Department, Colonel Pnina Sharvit-Baruch, is about to leave the army and join them on the staff of the law department; worse, she's going to be teaching impressionable young students about international law and its applications. They launched a public campaign to block her appointment, obviously fearing that some of her students may grow up to think that it can be legal to wage war, or some similar apostasy. They've been writing letters to the dean, and publicizing their opinions in the media (well: in Haaretz), and they're generally scandalized. Which is fine. I'm pretty scandalized by them, too, but I recognize their right to poison the minds of their students if the students are foolish enough to let this happen, and can't balance their professor's silliness with common sense. That's what democracy is about, you'd think.

Today Haaretz weighed in with the full force of it's editorial column. As usual with Haaretz, they don't translate some of the more interesting stuff into English, so you'll have to learn Hebrew to see how far Haaretz has come from the days when it was a liberal (European meaning) broadsheet championing democratic values. Their thesis: This Pnina lady is a criminal, she authorized crimes, and the last place she should be is at a university.

Freedom of speech is for the speech we like.