The Sausage Factory of Law and Politics

Back in March, I commented on the development of international legal norms related to the Israeli/Palestinian conflict with reference to Oliver Wendell Holmes' famous maxim: "Great cases, like hard cases, make bad law." The idea is that the Israeli/Palestinian conflict is the paradigmatic "great case" -- it is one that comes with tons of attention, advocacy, passion, politics, and pressure. Legal rules that develop out of that cauldron are not likely to be those that actual make sense as ordering principles for the international system. Rather, they are those which crop out from the sum of all the various pressure on the system.

Daniel Taub, writing in the Boston Globe, fills in some details which make me feel even more confident (unfortunately) in my evaluation:

A SHORT WHILE ago I met with a group of eminent jurists who were on a fact-finding mission, examining Israel's military operation in Gaza. After listening to their concerns and criticisms, I asked them: "Considering the rocket attacks launched against Israel by terrorist groups in Gaza, what in your view would have constituted a lawful response?" The answer was total silence.

The troubling notion that international law has no practical advice for a state facing terrorist attacks other than to grin and bear it is increasingly pervasive. John Dugard, the UN Special Rapporteur on Human Rights in the Palestinian territories, issued eight reports on Israel's responses to terrorism and never found a single measure adopted by Israel to be lawful or proportionate. His successor, Richard Falk, recently issued a report that goes one remarkable step further. In the conditions existing in Gaza, he asserts, any Israel military response would be "inherently unlawful." According to Falk's understanding of international law, Israel has no right whatsoever to defend itself.

It is possible that Israel just has some compulsion towards barbaric activity, and willfully avoids any response to terrorism that doesn't break the law. But I doubt it, and in any event Falk's extension seems to fit better with my view that "disputes [about the relevant international legal standards] are being 'settled' with an eye towards vindicating as many Palestinian and/or Arab claims as possible," because that what the relevant political actors demand out of UN rapporteurs. Like Taub, I don't really have an idea of what a "lawful" counter-insurgency program would look like to these theorists -- Falk indicates that there simply is no such thing, which is a fundamentally idiotic way of ordering international law under any metric other than "screwing over Israel". It's a shame, because as I've written, this is a question that desperately calls for some serious progressive scholarly scrutiny.

But we're too busy positioning ourselves on the right side of the great case to notice that we're creating bad law in the process.