International injustice
International law also seems to ignore the laws of war and the violations of the Geneva Conventions by forces like Hamas. When Hamas fighters use human shields and camouflage themselves as civilians they are committing war crimes that are usually ignored by the media and the proponents of "international law."Last week the United Nations issued a report painting the Israelis as major violators of international law in the three-week Gaza war that began in December 2008. While many find the conclusion a bit unsettling or even bizarre, the report's conclusion may be largely correct.
This says more about international law, however, than it does about the propriety of Israel's conduct. The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.
Article 51 of the U.N. Charter forbids all use of force except that for "self-defense if an armed attack occurs." Thus the United Kingdom's 1946 removal of sea mines that struck ships in the Strait of Corfu was held to be an illegal use of force by the International Court of Justice, even though Albania had refused to remove its mines from this much used international waterway. Israel's raid on Uganda's Entebbe Airport in 1976—to rescue the victims of an airplane hijacking by Palestinian terrorists—was also illegal under Article 51.
Domestic criminal law restricts the use of defensive force in large part because the law prefers that police be called, when possible, to do the defending. Force is authorized primarily to keep defenders safe until law enforcement officers arrive. Since there are no international police to call, the rules of international law should allow broader use of force by victims of aggression. But the rules are actually narrower.
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From 1979-1981 the Sandinista government of Nicaragua unlawfully supplied arms and safe haven to insurgents seeking to overthrow the government of El Salvador. Yet El Salvador had no right under international law to use any force to end Nicaragua's violations of its sovereignty. The U.S. removal of the Taliban from Afghanistan in 2001 was similarly illegal under the U.N. Charter (although it earned broad international support).
An aggressor pressing a series of attacks is protected by international law in between attacks, and it can take comfort that the law allows force only against its raiders, not their support elements. In 1987, beginning with a missile strike on a Kuwaiti tanker, the Iranians launched attacks on shipping that were staged from their offshore oil platforms in the Persian Gulf. While it was difficult to catch the raiding parties in the act (note the current difficulty in defending shipping against the Somali pirates), the oil platforms used to stage the attacks could be and were attacked by the U.S. Yet these strikes were held illegal by the International Court of Justice.
Social science has increasingly shown that law's ability to gain compliance is in large measure a product of its credibility and legitimacy with its public. A law seen as unjust promotes resistance, undermines compliance, and loses its power to harness the powerful forces of social influence, stigmatization and condemnation.
Because international law has no enforcement mechanism, it is almost wholly dependent upon moral authority to gain compliance. Yet the reputation international law will increasingly earn from its rules on the use of defensive force is one of moral deafness.
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