Settlements, Ethnic Cleansing, and Overcoming Law

At the international law blog Opinio Juris, professors Kevin Jon Heller and Eugene Kontorovich are having a discussion about whether the efforts to remove the settlements (including restrictions on "natural growth") might be characterized as "ethnic cleansing" under international law (Kontorovich forwarding the idea, Heller expressing skepticism). Here are the links to Eugene's introduction and first post, Kevin's response, Eugene's retort, and Kevin's rejoinder.

Not being particularly knowledgeable about the relevant areas of international law, I don't feel qualified to venture an opinion as to whether Prof. Kontorovich is expressing a colorable claim. Insofar as I do have an opinion on the course of the debate, it seems to me that Prof. Heller gets the better of it -- but then, I'm biased towards his position. But part of Prof. Kontorovich's point is to show that, as a question of positive international law, the settlements present a far more complicated case than is often let on -- and in that, I think he's successful.

My point, however, is not to weigh in on the merits of the legal dispute, but rather once again to express my skepticism about using international law, as currently expressed, as a sort of argumentative trump card. I have no moral problem with evacuating the settlements. I won't say it sets off no moral alarms, but surely none that rise to what I would consider the seriousness of "ethnic cleansing". But let's assume, for the sake of argument, that Kontorovich has the better of the argument with Heller -- a possibility that I don't think non-international law experts can definitively rule out from a legal perspective. What does that imply? I think we would, bluntly, be fools to accept that as that and move on. The rules of international law aren't divinely inspired. Finding that removing the settlements violated the strictures of prohibitions against ethnic cleansing would do more to show a shortcoming in the current state of the law than it would indict the evacuation project.

I've noted recently my view that international law is acutely vulnerable to political manipulation, with norms developing less on whether they make sense as general rules, and more based on whether they aid the parties we want to see benefited. It might seem that I'm making a similar claim here: that we should ignore a formalist finding that our preferred political project is illegal because it conflicts with our desired social outcomes. But there is a subtle difference between a "pure politics" approach to law, and trying to make law cohere to the values we're actually trying to enact through out. The former is an ad hoc attempt to simply aid one's allies -- it isn't concerned with broader notions of legal coherency, consistency, or equality. The latter is an instantiation of Oliver Wendell Holmes' (him again!) observation that "the life of law has not been logic; it has been experience." Law does not possess some totemic power to proclaim its own primacy or even legitimacy. We evaluate legal regimes based on whether they work; whether they are true to our experience.

The point, though, cuts both ways. Particularly because international law is relatively young and has had little time or opportunity to establish its own center of gravity independent of the political exigencies of the day, we should be appropriately critical in examining whether stated legal rules in the international arena actually effectuate a fair and equitable system of ideals. Waving international law findings like a talisman (even -- especially? -- when the clause in question is something as serious as "ethnic cleansing" or "war crimes") skips this very important step, and actually contributes to the politicization of law by leaving its political underpinnings unchallenged.