The Contingency of International Law
And why it all boils down to PR, one way or another.
Monday Notes are sometimes just a set of notes. Here’s a set of scribbles pivoting off our recent episode with Samuel Moyn.
For weeks, I’ve been arguing with Shadi about whether it’s somehow Islamophobic to assert that Hamas uses human shields. One of my counter-arguments is that the practice has a long pedigree. I confess I didn’t anticipate it was quite this long.
From a footnote in a 2009 survey of how international law deals with the problem of human shields:
Interestingly, during the Civil War, the Union Commander in Alabama ordered that secessionist preachers be placed on trains to deter attacks.
From the same survey, some good insight as to why the aspirations of international humanitarian law seem to fall so short in practice (bolding mine):
All international humanitarian law reflects a delicate balance between military necessities and humanitarian concerns. As famously noted in the 1868 St. Petersburg Declaration, the law "fix[es] the technical limits at which the necessities of war ought to yield to the requirements of hostilities." The process of law formation thus takes cognizance of the military's need to fight effectively by tempering humanitarian norms with military common sense. The fact that only States in the Westphalian constitutive system possess authority to generate international law (through treaties or by practice that matures into custom) necessitates this dynamic of accommodation. After all, States are presumptively rational actors who accept constraints on their ability to conduct military operations only with great reluctance. This being so, treaties "should be construed not as theorems of Euclid, but with some imagination of the purposes which lie behind them."
Keep the above in mind when you hear “proportionality” invoked by international humanitarian law people. You might think that proportionality derives from some kind of common sense intuition, perhaps related to hoary Biblical calculus — “eye for an eye, tooth for a tooth” — that if more than 10,000 Palestinians have been killed as a result of Hamas’ rampage that took 1,400 Israeli lives, proportionality comes into play.
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Well, it doesn’t. Proportionality refers to the “acceptable” ratio of civilians killed when weighed against whatever military goal the attacker hopes to achieve in any one strike. These ratios are called “Collateral Damage Estimates” in U.S. military-legal slang. Good crisp NPR summary:
If it's a member of al-Qaida plotting the next attack, the calculus may include the possible collateral death of one or two civilians, but if the target, for instance, is Osama bin Laden, then a higher number of likely civilian deaths may be considered acceptable. The numbers are generated by military and civilian officials and are classified. And a decision to strike that target could go up the chain of command, depending on the number of casualties.
"This is an oversimplification," said Paradis, "but for example if the CDE is 1, then a lieutenant can order the strike. If it is 10, it must go to a major, is 100 it must go to a colonel, and if 1,000 it must go to a general. All along the way, you also have military lawyers consulting in the process in the hopes of keeping you honest."
In case you are wondering if Israel departs very far from U.S. best practices in selecting targets, the answer is no, it doesn’t. Like in the United States, an intelligence officer and a commanding officer pick targets with a military lawyer on hand at all times, and it’s all properly documented. And the statutes they work against are the same as ours:
Israeli positions on the law of targeting are well within the mainstream. Israel is not a party to the 1977 Additional Protocol I (AP I) to the 1949 Geneva Conventions, which sets forth the key treaty-based targeting rules for parties to the instrument. But like the United States, Israel is of the view that most targeting rules contained therein reflect customary international law in international and non-international armed conflict, which does bind the IDF. In those cases where it believes an AP I targeting provision does not mirror a customary rule, it makes its position on the matter clear. For instance, it does not accept AP I’s two rules imposing targeting restrictions based on environmental impact, a position shared with the United States.
Are these things really so arbitrary? From the same earlier NPR article:
The issue of proportionality "is pretty subjective," said a retired senior military officer who served in the Middle East and requested anonymity given the sensitivity of the topic. "The attacker makes the determination, but ultimately public opinion will decide. Israel will probably do what it believes it must to win while trying to mitigate the domestic and international consequences by using as much precision as they deem appropriate."
“Public opinion will decide”—that assertion shapes most of the debates surrounding this most recent Gaza war, and indeed the running theme of the entire Israeli-Palestinian conflict. The Palestinians have been the cause célèbre of the international left throughout the Cold War, and that status remains.
Domestically, in democracies, the argument carries some water. Will young voters and those on the left support Biden in 2024? And will whatever fear they instill in the administration be enough to change policy? I think it still remains to be seen whether it will be dispositive. But it’s certainly not to be dismissed out of hand.
Abroad, the question of global public opinion seems much less important. What is this episode doing to America’s reputation with the Global South? Nothing positive, to be sure. But I suspect that the countries of the Global South have long been quite cynical about American lyricism about world order, seeing it clearly as self-serving. The extent to which this cements pre-existing convictions is probably marginal.