-- 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.