One on One: Ruling out the wrong rhetoric

Prof. Avi Bell aims to set the record straight on international law.

By RUTHIE BLUM LEIBOWITZ
June 16, 2008 20:36
One on One: Ruling out the wrong rhetoric

idf soldier stunning 298. (photo credit: IDF)

'Everyone is entitled to a political point of view," says Prof. Avi Bell, head of the International Law Forum at the Jerusalem Center for Public Affairs, established in January with the help of the Legacy Heritage Foundation. "The trouble is that so many people these days - including experts - tend to confuse their opinion on what is moral with what is legal." Indeed, according to Bell - who teaches law at Bar-Ilan University, is a visiting professor at Fordham University and will be visiting professor at the University of Connecticut law school in the upcoming academic year - "there is a lot of international law rhetoric floating around that's loosely used and therefore very misleading." Israel's being a target of such rhetoric is of particular concern to Bell, an Orthodox Jew who made aliya from the US after receiving a law degree from the University of Chicago, and then served in the IDF Paratrooper Brigade before returning to complete his doctorate at Harvard. He has resided in Jerusalem ever since. "Attitudes toward Israel," claims Bell, who clerked for the Israeli Supreme Court and State Attorney's Office, "serve as a perfect example of groupthink having replacing critical examination." The International Law Forum, he explains, was established to do two things: set the record straight by providing accurate information and "get people to understand international law in general - what it is, what it isn't, what it can do and what it can't." Bell says that among the issues requiring the forum's immediate attention is terrorism. "Though there is actually a large body of international law dealing with this," he asserts, "for some reason, whenever discussions on the 'war on terror' emerge, no one ever discusses the body of international law that requires combating terrorism. They will discuss civil rights, which is important, and the laws of war, which are also important. But they won't discuss the law of terrorism." Another key topic Bell says the forum will tackle is genocide. "There are interesting issues relating to the Genocide Convention that are very relevant in this region, where there are leaders who actually talk about real programs to carry out real genocide," says Bell, indirectly referring to Iran's nuclear threat, and its president's openly expressing his intention to wipe out the Jewish state. In an hour-long interview, Bell outlines his plans to use the International Law Forum as a tool to educate the public on a subject everyone discusses freely, but few actually grasp. "I'm aiming at those people who have an open mind for logical arguments, based on in-depth research and analysis, whether they agree politically with me or not," he insists. NGO Monitor counters what it considers false claims about Israel's alleged violations of international law. How is your endeavor going to be different? NGO Monitor addresses the way privately set-up organizations - responsible only to their membership - engage in international affairs. Because those organizations sometimes use the language of international law, it is important for a group like NGO Monitor, which does good work, to keep an eye on them, and tell us, among other things, how they're using or misusing international-law rhetoric. But the NGOs are really the secondary players in the field. The major players are international law institutions - such as the International Court of Justice [at The Hague] - and states. Then, of course, there's the UN. While most of its output is not international law per se, it is used by international law people. And, in the long run, the cutting edge of where international law is developed is the universities. This is why there has to be somebody taking a wider view of the law itself, not just the NGOs that invoke it. How can there be such a discrepancy in interpretations of international law? When Israel is accused of violations, such as over the blockade of Gaza, is it not possible simply to read what's on the books? Herein lies the problem. Most of international law is not "on the books." Here's an analogy: Imagine you're at a football game, and you don't really know the rules. You watch these players running around on the field and try to figure out from what they're doing what the rules are. You see one player pushing another, and ask yourself: Is that according to the rules? Is that against the rules? Do the rules even have anything to say about that? And the only people who will give you answers are fans of one team or the other. So naturally, many of them are giving you selective interpretations. In other words, it's very difficult to figure out what international law actually is. Much of it is known as "customary law" - the law that is not written anywhere, but which states do because they think they're legally obliged to do. To figure out what the custom is, you have to see states do it, and figure that the reason they did it is because they think they're supposed to by law. Precisely because it's hard to know what the actual law is, there is a great reliance on experts. But experts have their ideologies, like everyone else, and many experts mix in their ideology with their expertise. So, you end up with legal opinions that are half politics and half law. And the hotter the legal issue - the more it's something like the Arab-Israeli conflict - the harder it is to get a straight opinion about anything. Why will your center be any different? Aren't you just another ideological body presenting your own interpretation of the "football game," based on the team for whom you're rooting? I don't think it's possible on issues like this to be absolutely objective, which makes it all the more important to make sure that different perspectives get a full hearing. I think that there is a shortage of voices presenting the perspectives we will be highlighting. I hope that by balancing the perspectives, people will get a broader view of the issues. To make our opinions more valuable, and closer to what the rules actually are, one of the things I want to do is focus more on primary materials and empirical tools, and less on quoting others' interpretations. If our materials are persuasive and based on good research, I think we'll convince people who maintain an open mind. Is the ultimate goal to influence international law itself, by forging laws or creating amendments to existing ones? Before we can decide how to amend the rules, we have to answer two other questions: first, what is the law right now? And second, how will changes in the rules affect states' behavior? There was an interesting study a few years ago by a professor at Yale - now she's at Berkeley - Oona Hathaway, showing that when states with bad human-rights records sign human-rights treaties, subjecting themselves to stricter international-law rules, their human-rights records often get worse. Indeed, when Germany attacked Poland, thereby precipitating World War II, war was illegal under the terms of the Kellogg-Briand treaty. In other words, it's a terrible mistake to assume that amending international law will necessarily make matters better. Sometimes it makes things worse, either because the rules are completely out of touch with reality, or because it allows states to be judged by their rhetoric rather than their behavior. This is one of the reasons that a key mission of the forum is to encourage more critical thinking about international law in general. Because if we add more laws of war, will the behavior of Hizbullah or Hamas improve? I doubt it. If we want international law to be helpful on topics like this, we have to have a much better sense of what international law can realistically accomplish. Speaking of which, let's talk about concrete examples, like torture. How is that defined in international law? According to international law, torture is always illegal. On the other hand, there is no real definition of torture. There are bits and pieces of definitions, but not enough to give a clear picture of whether most of the things we refer to as torture actually constitute torture. So, for example, we know that pulling out somebody's fingernails is torture. But, does subjecting someone to repeated interrogations when he's tired constitute torture? Now, there are a lot of people who will say that it does, and therefore it's illegal. They will point to the fact that the United States is doing just that in Guantanamo Bay - interrogating people who are past the point of exhaustion. What, you may ask, is the international law answer to this claim? Well, there is no clear answer. The reason it is all so confusing is that international-law issues with regard to torture are distinct from the political/ideological issues with regard to it. A political claim might be that torture shouldn't always be illegal - that exceptions should be made in cases of "ticking bombs," for example, where extracting information during an interrogation using unorthodox methods could prevent an act of terrorism. But whether it's a good idea or not tells you nothing about whether it's legal under international law. Because of this confusion between what good law would be and what the law actually is, much of the conversation and debate about international law ends up being totally beside the point. Our moral certainty gives us a false sense of legal certainty. Can you relate this kind of confusion about law vs politics to the debate over whether Israel's treatment of Gaza violates international law? Gaza serves as a great example of this confusion. There are a host of issues raised here, and I can't discuss them all, but let's look at one example. Everyone agrees that Israel may not engage in "collective punishment," in "disproportionate use of force" and in the use of "force without distinction." But does everyone know what these terms mean? Now, as opposed to the case of torture, there is a lot of law governing the rules of war - there were prosecutions at Nuremberg; there were prosecutions of Japanese, Yugoslavian and Rwandan war criminals; there also have been many internal prosecutions, court-martials, that have been brought in various states in the West. So we actually have a good idea of what kinds of things constitute collective punishment, for example. Yet, Human Rights Watch says that Israel is engaging in collective punishment in Gaza by not supplying fuel and other goods. But there's never been an instance in history of an individual or state's being prosecuted for committing the war crime of collective punishment just for carrying out economic sanctions. In fact, I can't think of a case when such a charge was even raised. When NGO Monitor challenged Human Rights Watch on this point, its response was: "We know collective punishment when we see it; don't bother us with the facts." This kind of attitude makes it very difficult to conduct an intelligent conversation. I mean, there are indeed rules governing how Israel may and may not conduct itself in relation to Gaza. But this kind of charge has little or nothing to do with the legalities of the issues. You say that according to international law, collective punishment is forbidden. Yet isn't it a common method employed in armies to keep soldiers in line - for example, forbidding an entire unit a furlough because a single soldier didn't make his bed? It's true that a grounded army unit is a "collective," and it has been punished. But it still does not constitute collective punishment according to the way the term is used in the rules of war. Does collective punishment mean anything that sounds like punishment that happens to a collection of people? The answer is no. Collective punishment consists of criminal-type penalties or indiscriminate military force as a punishment - such as executing all of the residents of an entire neighborhood because of a murderer in its midst. The Nazis, for example, would punish an entire town if a resistance member hailed from that town. That is a violation of the rules of war, because only combatants can be targeted, not civilians. During and after the 2006 Second War in Lebanon, the term "disproportionate use of force" was used in relation to Israel's having bombed populated areas. Israel's claim was that the Hizbullah purposely positioned itself among civilians, making it difficult to avoid collateral damage. Was Israel violating international law or not? The rule of proportionality, as it applies to the laws of war, is that when an army aims at legitimate targets - like combatants and combatant infrastructure - it can cause collateral damage to civilians, but not too much. What this means is that the harm to civilians shouldn't be excessive, when taking into account the military operation required for attacking the target. There are three problems here: First, how do you weigh these two things? Nobody's ever come up with a good formula. And for that reason, it is really hard to find prosecutions of people for disproportionate use of force in war. Almost all of the indictments that involve disproportionate use of force will also talk about the use of force that was aimed at civilians. And the eventual judgment will be based on whether civilians were targeted, not whether they were harmed disproportionately. Second, combatants can and do lie. Take Hizbullah. During the war in Lebanon, it claimed only 80 Hizbullah fighters were killed, and it maintained that line until a reporter noticed that, just by counting up funeral announcements, Hizbullah had buried at least several hundred of its fighters. To this day, Hizbullah still hasn't come clean about its war losses. Third, when you see civilian casualties, it's not always clear who's violating the law. During the war, Hizbullah deployed largely in urban areas in places that looked civilian, such as schools, houses and hospitals. Its fighters were dressed like civilians, and drove around in vehicles that looked like ordinary cars. And they deliberately fought next to UN positions. When you take this into account, it's a slam-dunk case that Hizbullah violated international law by using civilian shields and engaging in what's called perfidy. But it's very difficult to conclude that Israel imposed a disproportionate cost on civilians. Are the words "combatant" and "civilian" defined clearly? A combatant is someone who takes an active part in hostilities. He doesn't necessarily have to be carrying a gun or wearing a uniform. He may be a planner, or somebody who transports fighters. Now, according to the rules of war, a combatant is required to wear a uniform. But just because someone violates the rules of war by not wearing a uniform doesn't mean he's not a combatant. International law has traditionally recognized the category of illegal combatants - people who carry out hostilities while violating the rules of war by not carrying their guns openly and not wearing uniforms. In this respect, Israel imposes on itself a much harsher standard than international law requires. The Israeli Supreme Court ruled that, as far as Israeli law is concerned, there's no such thing as an illegal combatant: There are only civilians and legal combatants - those who follow the rules of war by carrying their guns openly, wearing uniforms and obeying the laws of war. According to Israeli law, all those who do not wear uniforms or carry guns are civilians. This creates an obvious problem. Terrorist groups like Hamas and Hizbullah tend to label a lot of their combatants as civilians. What about political supporters of combatants, such as Hitler Youth during World War II, or civilians in Gaza who laud suicide bombings and missile attacks? International law doesn't have a category for civilians with awful views; it only refers to legal targets and illegal targets. So, it would be illegal to target Nazi-supporting or terror-supporting civilians, if their support didn't consist of actually participating in armed conflict. On the other hand, under the rule of proportionality, a lot of them would have ended up dead anyway. That is, if you had a munitions plant in a German city, which was a perfectly legal target, and civilians living next to it got killed in an attack against it, it would have been legal for them to have been killed in the process of that attack, whether or not they were Nazi supporters. It's crucial to note that international law doesn't always track what our moral intuition tells us. It is a mistake to assume that because something is legal, it is moral, or because something is illegal, it is immoral. International law is the way it is because of various historical developments. Some of the rules strike me as very good, others as silly. And some were good in their time but are now archaic. What about the term "illegal outpost"? Are the outposts indeed illegal? The outposts you're referring to are illegal according to Israeli domestic law. They are civilian settlements that violate Israeli planning, building, zoning and maybe even property laws. But what does international law have to say about Israeli civilians deciding to break Israeli law in this way? The answer is nothing. The reason for this is that international law generally gets involved only when states do things they're not supposed to do. Outside their borders, you mean? Both inside and outside. Let's understand where the source of confusion is here. The international law that applies to "settlements" is not the same law that applies to "outposts." The argument that's generally made about Israeli settlements is that when territory is "occupied," according to the definition of the Fourth Geneva Convention, it is illegal under Article 49 of the convention for a state to transfer parts of its population to that territory. Now, what constitutes "transfer" and "occupied territory" will be argued from today until kingdom come or maybe even beyond that [he laughs]. But it's pretty clear that if a group of Israeli citizens sets up housing in violation of Israeli law - without authorization and contrary to building regulations - that Israel hasn't transferred anybody. If anything, Israel is telling them not to go there. So, unless you show that Israel has somehow done something that constitutes a "transfer," you can't argue that this is a violation of Israel's duties under international law. Now it's true that some people maintain that even outposts are illegal under international law. When some Palestinians call outposts "illegal settlements," they actually mean that any unwanted Jewish presence in Palestine - however they define that - is illegal, and part of a Zionist invasion of their land. So, whether an outpost violates Article 49 of the Fourth Geneva Convention or not, it's illegal in their minds. But, frankly, that's not a very credible argument. For the forum to counter this kind of abuse of international-law language, we will have to step away from the daily headlines, and engage in long-term empirical research, in order to develop a new kind of thinking altogether.


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