Issue Date: July 28, 2006
International law under attack
Fewer double standards would enhance world security, says expert
By MARGOT PATTERSON
International law is often invoked in times of crisis, but its
parameters are not always well or widely understood. To better grasp how
international law applies to some of the current conflicts in the world,
NCR turned to Richard A. Falk, professor emeritus of international law and
practice at Princeton University and now teaching at the University of
California at Santa Barbara. Falk is the honorary vice president of the
American Society of International Law and the author of numerous books,
including most recently The Declining World Order. He served on a
three-person Human Rights Inquiry Commission for the Palestine Territories
appointed by the United Nations in 2001 and, earlier, on the Independent
International Commission on Kosovo.
NCR: Following recent missile tests, North Korea was brought
before the United Nations Security Council. Could you tell us what
international law has to say about missile tests? Are they in violation of
international law? As you know, just days after North Koreas test of
ICBMs, India tested nuclear missiles, but theres been no mention of
bringing India before the Security Council. Why?
Falk: North Korea is not subject to special legal restraints in
the manner that, say, Iraq was after the first Gulf War in 1991 when the
Security Council imposed constraints on it. As far as missile tests go, there
could be an argument made that this is an unacceptable interference with
freedom of the seas, but given that all the major powers have conducted missile
tests and its been treated as part of an acceptable use of air space and
ocean in this period of history, its treated as a legitimate security
activity.
But the reputation and character of the North Korean government has made
countries in the region and most countries in the world regard this as a
dangerous escalation of tension in the region and in that sense a threat to
international peace, perhaps exerting pressure on Japan to move towards
comparable military capabilities with respect to nuclear weapons. Therefore one
can spell out a chain of consequences that add up to a threat to peace and
security, which it is the responsibility of the United Nations to address.
Iran has also been recently threatened with being brought before the
Security Council for continuing uranium processing. What are the legal grounds
for doing so?
The legal grounds in that case, as I understand it, are fairly flimsy,
at least to induce this kind of response, which needs to be understood as
politically motivated, not really a reaction to what Iran is alleged to be
doing. There is some basis for saying Iran hasnt upheld in all respects
its obligations to the International Atomic Energy Agency and has kept certain
things secret, not allowing certain kinds of inspections, and therefore that it
has been acting in violation. But what it purports to be doing is something
that several other non-nuclear countries, including Japan and Germany, have
done, which is to pursue a full nuclear fuel cycle and peaceful nuclear
technology. Supposedly, all states that are members of the nonproliferation
treaty are entitled to the full benefit of nuclear technology provided that
they renounce the option to develop nuclear weapons.
Theres a great deal of hypocrisy in the American position because
at the same time its censuring Iran for taking this step, its
silent about Israels nuclear weapons. The United States is now entering
into an elaborate cooperative agreement with India in regard to developing
nuclear technology. Its extremely selective in the application of these
standards and it is itself not pursuing its obligations under the Nuclear
Non-Proliferation Treaty, which emphasizes the duty to negotiate in good faith
toward a nuclear disarmament treaty and indeed toward general and complete
disarmament. You could argue from the international law perspective that since
the United States is in material breach of the treaty, other parties to it are
released from any obligations they might have.
The kidnapping of an Israeli soldier by members of Hamas and
Israels subsequent move into Gaza is an ongoing story. Some have accused
Israel of war crimes in bombing Gazas main power plant. What does
international law have to say on this matter, and does international law apply
in any way to the abduction of an Israeli soldier?
I think there is little doubt that international law does condemn the
bombing of Gazas power plant both because its a non-military target
and because its a major example of recourse to collective punishment by
Israel. The effect of the power strike is to deprive a large portion of the
Gazan population of electricity and water at a time of heat and prior
privation, and its been indicated fairly authoritatively by Israeli
statements that this was partly to punish the Gazans for voting in favor of
Hamas. This is clearly a violation of international law. One of the basic
principles of customary international law is that you cannot use
disproportionate force in relation to an act, even a wrongful act by an
adversary. Because one Israeli soldier was abducted in circumstances where
there was a possibility to negotiate his release, to respond in this manner is
so grossly disproportionate as to violate customary international law, the just
war tradition in a fundamental way, and the whole concept of permissible uses
of force that is embodied in the Geneva conventions specifying international
humanitarian law, as well as the spirit of the U.N. charter. Its not only
unlawful, its in my view an international crime and a crime against
humanity, as was specified initially in the Nuremberg trials in 1945.
Could you address the abduction of the Israeli soldier, whether that
is an international crime?
I think thats a more ambiguous act and it relates to the way in
which Israel has been using force against Gaza and what the rights of
Palestinians are in this circumstance. An Israeli soldier is part of the
Israeli military capability, and I think given the whole context of a
belligerent occupation that has not abided by international law, that has not
followed the resolutions of the United Nations, that has not abided by the
Geneva conventions, that this has to be viewed as an act of war and that it is
in the context of what Israel itself regards as a relationship of war. My best
judgment, though Ive not thought a lot about it, is that it is not
intrinsically a violation of international law. If hes subject to torture
or is executed while in captivity, that would be a violation of international
law. But to capture a soldier is not in itself in violation of international
law in this context.
Lets talk about Lebanon. How does international law apply to
whats going on there: first, Hezbollahs capture of two Israeli
soldiers and, second, Israels response to that?
Again, the issue of Israels response is clearly one that raises
serious international law issues because its disproportionate, because it
targets civilian sites, because its caused heavy civilian casualties. The
Hezbollah abduction of Israeli soldiers does seem to me a violation of
international law. Theyre not engaged in some kind of relationship based
on the law of war. There was no, as far as I know, sufficient provocation on
Israels side that would justify such an act by Hezbollah. They would seem
to be acting in solidarity with Gazans, but there is no right of collective
solidarity with a people that is resisting a belligerent occupation.
Whats the state of the international system today? Is this a
broken system and what will it take to fix it?
Its a system in severe trouble, especially in the Middle East
where there is a real risk of further deterioration in the direction of a
regional war and a regional war with intercivilizational dimensions to it,
which could be very messy, very ugly and devastating for the people in the
region and probably do great harm to the world economy and global security in
general and any sense of a viable world order. Thats the crux of the
current problem, and it derives from an aggressive approach to security taken
by both the United States and Israel and a use of force premised on inflicting
disproportionate harm on adversaries and using high technology against
essentially defenseless civilian populations that have at most extremely
primitive and limited weapons of response. Its a very unequal form of
conflict that depends on this militaristic approach to security that is trying
to offset the political weakness and the moral and legal weakness of the U.S.
and Israeli position in respect to these issues.
Personally, Ive been very concerned that in responding to 9/11 the
U.S. government has undertaken a path that was initially at least seeking to
impose a global security system on the rest of the world. Counterterrorism was
basically a mobilizing tool to win support, to quiet congressional opposition
and questioning, and to put the whole thing under a patriotic and security
banner. The Iraq war, I think, was undertaken despite the realization that it
would probably aggravate the issue of global terrorism and it was undertaken
because of these wider security ambitions that were outlined before 9/11 in the
neoconservative documents published by the Project for the New American
Century.
How would you like to see U.S. policy change?
The two best things that could happen would be to focus on legitimate
grievances and an emphasis on law enforcement based on international
cooperation. ... Its been a tragic mistake to treat this as a war on
terrorism rather than as a challenge to enhance law enforcement. It may be too
late to correct this distortion of response.
A more consistent policy toward the Islamic world, less double
standards, less selective implementation of international law, more equitable
forms of globalization: All of these issues were facing, if there was a
genuine constructive approach taken, would enhance security and create a more
prosperous world. Iraq is showing what Vietnam apparently failed to teach us --
that translating military superiority into political outcomes is difficult if
not impossible in the late 20th and early 21st centuries.
National Catholic Reporter, July 28,
2006 |