Thursday, March 19, 2009

A Falk Statement

"Great cases, like hard cases, make bad law."
-- Justice Oliver Wendell Holmes, Jr.

UN special rapporteur on human rights in the Palestinian territories Richard Falk (yes, the one who questions whether the American government was complicit in 9/11) believes Israel's Gaza operation constituted war crimes of the "greatest magnitude".
"If it is not possible to [distinguish between military targets and surrounding civilian entities], then launching the attacks is inherently unlawful and would seem to constitute a war crime of the greatest magnitude under international law,"

I not only strongly suspect that this statement is wrong, but if it is descriptively true then it represents a very dangerous development in the laws of war, one which creates a massive incentive for armies to embed themselves inside civilian infrastructure. If the art of war, like the art of boxing, is to hit and not be hit, then why wouldn't a group like Hamas choose to embed itself inside a civilian location where it apparently would constitute the highest grade of war crime to fire back? Ultimately, Prof. Falk's rule represents the legalization of human shields.

Back when Prof. Falk was appointed as special rapporteur, international law professor Julien Ku slammed the pick, saying he is "basically unqualified to be a human rights investigator." The reason, Prof. Ku maintained, was that while Prof. Falk is undoubtedly a luminous figure in the theory of international law, his entire career has been that of an advocate -- someone who created and forwarded normative positions.
So Falk may be a well-known and influential scholar in his day, but none of this means he would be a very good investigator tasked with gathering complex and sometimes hotly contested facts in a highly dangerous and politicized environment and then applying legal norms to those facts in a credible and persuasive way.

And indeed, Israel's objection to Falk in the first place was that Falk had apparently prejudged it -- he already has happily chirped Nazi comparisons and casually throws out terms like "war crimes of the greatest magnitude" without any serious substantive investigation.

But here we're seeing something different. It is an advocate's trick: smuggling in what I take to be a significant positive change in the structure of the laws of war -- that when a defender utilizes civilian areas to shield military targets, the attacker is criminally responsible for the ensuing civilian casualties -- as the current state of the law. This would seem to be symptomatic of what Prof. Ku was talking about -- Prof. Falk continues to envision himself as a trailblazer rather than a fact-finder.

Perhaps the law of war should be changed to adopt Prof. Falk's stance. But one gets the feeling that, if the rule is adopted, it will not be because it has been interrogated and found to represent the most sensible rule of war, but rather it will be adopted because it vindicates the "correct" side. This is why I put the Holmes quote at the top of this post. A significant body of international law relevant to the Israeli/Palestinian conflict remains unsettled (Right of return, the interpretation of UN Res. 242, just war theory, and the right to gain territory through war, to name a few examples). For some time now, I have gotten the distinct feeling that these disputes are being "settled" with an eye towards vindicating as many Palestinian and/or Arab claims as possible. Sometimes, the resulting rules may make sense (I think the rule against gaining territory through warfare is reasonably sound), sometimes I may disagree with them (as I would with the above shift in burdens in urban warfare scenarios). But the point is that these decisions are not being made through dispassionate, legal processes. They are being settled in the context of a paradigmatic "great case" -- with all the social, legal, diplomatic, and moral pressures that entails. The ensuing structure of legal precedent forged under this weight will likely not find itself amenable to just or expedient resolution of conflicts.

Because of this, it is possible -- even likely -- that these rules will simply be ignored the next time the international community decides to wade into the war crimes arena. Israel/Palestine will hence become the Bush v. Gore of international law. But unlike the American judicial system, the international legal arena does not have the reservoir of trust and goodwill that would allow it to absorb the shock of such a case and still maintain a culture of independence and impartiality. Unless international law is going to continue to be a basically ad hoc imposition of global power politics clothed in legal jargon, this is not a positive development.


Jenny said...

Falk has a point though: what about the starvation of the palestinians after the blocks were put up? See here:
I'm sorry,but I think the Israeli government needs to be put on trial.

David Schraub said...

With all due respect, you have even less knowledge of the relevant codes of international law than I do (those who have the requisite knowledge make alternative arguments), and thus have no grounds to make such a fact-intensive claim (particularly sourced from such a ridiculously biased source like Lenin's Tomb -- I'm sorry, but their "history" of Zionism is flatly anti-Semitic, not because it mentions acts of Jewish barbarism, but because it makes such acts into the sin qua non of Zionism without even the remotest effort to engage with Jewish lives or experience and indulges in naked supersessionism. Given the number of Jews which have been buried by communist ideology, I have no idea how Marxists even glance in a Jewish direction without hurling themselves to the ground and pleading for mercy, yet somehow they manage to smugly demand the moral high ground. It's disgusting).

Indeed, you're making the point of this post: it's not that you know or have any reason to know that "the Israeli government" has violated international law in a fashion that would deem them worthy of prosecution (by what body?). It's that you presume that the law is or ought to be interpreted in such a way so that the "right" side is vindicated, regardless of whether the law has been applied that way or whether the necessary constructions would make sense as a general rule. It is a popular construction of international law defined as "that which would declare Israel guilty". At least the Queen of Hearts demanded "sentence first, verdict later" -- the call here seems to be "verdict first, law later".

When people ignorantly say things like "the Israeli government needs to be put on trial", my facial assumption (until proven otherwise) is it a statement based off status-producing ethnic chauvinism and/or moral hatred.

PG said...

But here we're seeing something different. It is an advocate's trick:

YES. This really reminds me of why even some conservative law professors were horrified by the torture memos: not because the profs necessarily had a problem with getting rough with terrorists, but because the memos weren't real memos (neutral statements of law) but advocacy pieces that did their damnedest to find way for Bush to push the limits of the law, without providing any of the arguments about why he ought to constrain his behavior. Regardless of your moral stance on torture, you have failed your client if you only provide him with one side of the argument and not informed him of what the other side is and how strong it is. If you provide such full information and the client wants to press on, then you write the advocacy briefs. But you don't put one-sided advocacy under the heading of "memo." That's 1L Research and Writing.

The inability of a lawyer to distinguish between his informative and advocacy roles is a serious danger to any law-based community.

Jenny said...

I apologize for the offensive link,but I couldn't find the one I was looking for. Here's one on Palestinian starvation:

Jenny said...

That report you linked to also seems slanted towards Israel, Amnesty International,for instance, has reported Isreal and Palestine have comitted human rights violations.

David Schraub said...

I'm aware of what Amnesty says -- I'm not claiming Israel is or is not violating int'l law, I'm saying that it is a highly contested point which gets ignored because the statement is made in a conclusory fashion. Even Amnesty rarely engages in any deep, systemic legal analysis when making its points (I should say that even if Israel closing its borders is legal -- and it may well might -- I still think it is wrong. I should also say that there is a major gap between "human rights violations" and "human rights violations sufficient to spark an international trial". The latter is reserved only for the absolute gravest breaches [which are unable to be prosecuted by the host government -- and there is no indication that Israel's court system is unable to handle these allegations], and contra Mr. Falk there is no way to group Israel into that category at this time.).

Dr Pretorius said...

I'm not sure you're being fair to him here. There is an immediate plausibility to what he is saying. The central structures of just war theory (I am less familiar with international law) have exactly one goal - to limit the damage caused by war, and especially to limit it to certain participants. Attacking civilians, or putting civilians at disproportionate risk (interpreted fairly strictly) is pretty straightforwardly forbidden. And in a situation where it would be impossible to attack some force without doing that is one in which it would be impossible to attack that force.

This does mean that surrounding one's self with civilians would make it impossible to attack one within the constraints of just war theory - but the point of just war theory is not fair play. It is to limit the damages of warfare, even if that does end up causing more problems for one side than the other. "Human shields" are probably also not encouraged, to say the least, by just war theory, even if it does involve some incentive - any war in which one side is following strict rules creates an incentive for the other side to violate them. But violations by one side do not justify violations by the other - incentives such as this do not count as "legalizations".

David Schraub said...

Dr. P: Even if you (and thus Falk) are right, I'm pretty sure this isn't the state of the law now. If we want to reform the law, fine, but I think it is evidently clear that in this context any reform will not be done for dispassionate "legal" reasons, but for political ones.

I think (in true UChicago fashion) that liability accruing to civilian casualties should be assessed through the lens of the least cost avoider. Where civilian A is killed because military B fires a missile at terrorist C who embedded himself in A's apartment, it is at least as plausible to say C is liable as B is (likewise, if sparks from your train burn down the stack of hay I put next to the tracks (but on my property), is it the trains fault for issuing the sparks, or my fault for placing the hay there?). The right question is, is it easier for B or C to stop the harm from existing in the first place. I think it is very clear that it is easier for the defender in an urban environment to get civilians out (and particularly not deliberately use them as shields) than it is for the attacker to strictly differentiate in an urban warfare environment. Hence, the better obligation is upon the defender -- subject to a continuing obligation by the attacker not to behave recklessly.

I also think that the Falk rule would end up increasing rather than decreasing the damage caused by war. By allowing one party to consistently avoid reprisals, it likely will prolong the conflict and thus increase the net damage. And of course, by creating the incentive to use human shields it puts those civilians at greater risk if the other party gets fed up and decides to stop adhering to the rule (the incentive still exists because of the PR benefits -- something Hamas has long since learned and used to its benefit, and something thus responsible for hundreds if not thousands of Palestinian deaths).

Dr Pretorius said...

David, I think I'm uncertain as to which law you're talking about at this point. Is it the Geneva conventions? The sad thing about the term 'war crime' after all is that the word 'crime' is at best figurative in it. It just means a serious violation of the generally agreed on rules for what is and isn't appropriate in war (which may be in violation of, say, the Geneva conventions or not).

I also suspect that it's a little unfair to suggest that this is something Falk came up with as a general principle. When I mentioned Just War Theory I meant the doctrine itself (not the general issue of how/whether/etc), which does seem to entail this. (In this case there's at least a strong case to be made that Israel's Gaza operation violated the requirement of discrimination between combatants and noncombatants, the requirement of proportionality of military activity to the end in question, and (more tenuously) the prohibition on reprisals.) Since I'm an ethicist and not a lawyer I'm uncertain on the extent to which the various principles of Just War Theory have translated into the structure of international law that's based on them, but since, as I said, I think the term war crime is somewhat ambiguous here it's still a fair claim to make.

I also suspect that your suggestion would need a lot more detail to work. I assume in the case you mention that the harm to be avoided is the noncombatant being blown up, right? If so, it seems to me that it would be far easier for the attacker to not shoot the missile (I fail to shoot missiles every day, after all - it's easy) than the defender to ensure the safe and orderly evacuation of a building in a crowded area. I think if you want this way of thinking to make sense you would need some way of specifying the scope of the principle (for example, so that any military action is ever permissible).

Finally, while letting one party in a war avoid (certain sorts of) reprisals seems intrinsically unfair, and likely to prolong a war, I'm not sure you're correct about the results. After all, if there's one thing we know about human conflicts it's that when reprisals are unhindered they escalate. And more importantly, they generally escalate quickly to the point where one party attempts to simply eradicate the other. So without significant limits (practical or lawful/moral/etc.) what tends to result is far, far worse than a more limited form of warfare.

David Schraub said...

When we're talking about Least cost avoider, we're not just talking about the physical effort expended. "Cost" is defined broadly. It might be physically easier to simply stop running the train than to move the hay, but that comes at a huge cost. The "cost" of not firing the missile effectively in this case means one side can't prosecute an urban war. The defender, by contrast, can reasonably still fight said war, by evacuating the civilians. Since, as we agree, the law of war has to allow war to happen (we tried Kellogg-Briand; it didn't work), I think the costs pretty well line up on the defender's side.

I think "war crime" is tied to legalisms insofar as it indicates "crime so serious we should establish an international tribunal to try it". It's generally reserved for the pretty open and shut cases -- genocide, deliberate massacres of civilians, that sort of thing. The Mai Lais.

A proportionality or discrimination argument, by contrast, is going to be a matter of degrees, and requires pretty fine analysis of military necessity by actors (namely, judges) not qualified to do so. This is a prime separation of powers question: generally (at least in America) judges defer very heavily to military claims of tactics, necessity, or expected gains, because judges have no competence to adjudicate those sorts of claims. And that's with judges we can expect to be sympathetic to military claims to begin with. The international legal forum, by contrast, has shown itself rather indifferent to Israeli security claims (the ICJ advisory opinion against the security barrier devoted a single paragraph to the question). It doesn't just not defer, it is actively hostile on merits.

I'm not sure you're right that unhindered reprisals necessarily lead to escalation. The extreme alternative claim is Edward Luttwak's fascinating "Give War a Chance" article. But I also think your position creates a greater net "unhinderedness" than mine -- the civilian embedded urban defender gets completely unhindered reprisals. That prolongs war and puts civilians at risk insofar as the attacker still is (we know) going to try and fight back. If I was advocating eliminating the law of war entirely, that'd be one thing, but I'm not -- I'm just burden-shifting. The rules I outline still (if followed) would protect civilians, they'd just put a greater emphasis on the defender versus the attacker's obligation than Mr. Falk's.

Jenny said...

More justfications for charging Israel:

David Schraub said...

Didn't we already establish that I consider Leninology to be essentially anti-Semitic (and emblematic of the sort of idiotic Marxist far-leftism that I abhor)? Did you think that changed in the past nine comments, or do you just have amnesia from some sort of head injury?

This is not a marxist blog. Marxism analysis doesn't persuade me. I don't find it compelling. Indeed, I find it and its adherents rather morally repellent. If you want to buy into it, that's your business, but don't expect me to respect it. At the point where it's turned you into an apologist for imperialism and totalitarianism (in China), it's not a "left" I find at all recognizable.

Jenny said...

that's not why I linked it though, the post links to news stories that chronicle Israel atrocities.

David Schraub said...

Under the title of "One Day of Zionism".

Your continued willful blindness here is simply astonishing.

Dr Pretorius said...

It is worth noting thought that you've been taking the characteristic case to be someone who fires on a building containing both entrenched combatants and noncombatants as well. But actually the things that people are particularly angry about in Gaza are more like this. (The article also quotes Radhika Coomaraswamy as claiming that Israel committed egregious violations of international law.)

Also I think you're giving short shrift to the proportionality and discrimination claims here. Falk is transparently making a claim about discrimination, after all - he is saying that when discrimination is not possible, then launching attacks is a war crime. And on its face that's basically just a statement of the fact that discrimination is part of the requirements. Whether or not Israel was in a position where discrimination was impossible is a separate matter entirely. Proportionality is also trickier than I think you grant: I was under the impression that the Israeli response was to missile attacks from Hamas - if so proportionality might be very easy to determine. If the expected civilian casualties were higher than the expected civilian casualties of ignoring the missile strikes then it was a disproportionate response. (The actual Palestinian civilian casualties were much higher, after all.)

David Schraub said...

The usage of children as human shields is horrific, but I don't think that's what most folks are talking about -- most folks have focused heavily on the overall body counts, not individual incidents. The debate is about the degree to which the operation can be said to be systematically criminal. On the (relatively) pro-Israel side, few are denying that there might be incidents that violated the laws of war or that they should be punished, but they deny that the whole endeavor was illegal. The (relatively) anti-Israel side, for its part, isn't interested in these concessions -- they're trying to lump the whole thing as one massive war crime.

I don't think proportionality is measured body for body, because generally military goals aren't encompassed simply in terms of avoiding casualties. A military objective might be something like "destroying Hamas" or "eliminating weapons smuggling tunnels". To be sure, one could translate those goals into an expected amount of future casualties. But that doesn't seem adequate -- it doesn't, for example, place any value on creating conditions for a future peace (which, even more than preventing future deaths, is I think how Israel would ultimately describe its endgame [whether or not you think this was a wise action in pursuit of the goal]).

I also think you're badly mis-stating the discrimination requirement. If we have a military command and control bunker that contains 40 fighters and one civilian delivering a pizza, it doesn't violate discrimination principles to blow it up just because we can't pick out the civilian and deliver him to safety. Discrimination looks at what you're targeting in a broader sense: it demands that there be a specific military component to what you're trying to destroy. If there is and the attack is tailored to meet that end, discrimination has been satisfied (proportionality might not be -- one can still violate proportionality norms if, for example, the above ratios were reversed).

Discrimination, to my mind, is more of a hedge against recklessness: "I'm going to lob some missiles in this general vicinity, and I don't really care who I hit (it might be nice if some were military, but I'm really apathetic)". A specific operation with a specific militarily legitimate objective is per se not a discrimination breach even if there are intermingled civilians (again, it can still violate proportionality).