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Taming international law — Israel as the canary in the coal mine

No aspect of the modern leftist project poses more danger than the left’s approach to international law. By definition, international law is in tension with national sovereignty, but the “transnationalist” approach to international law advanced by leftists threatens to run roughshod over sovereignty. And, in the case of democracies, a threat to sovereignty means a threat to the ability of citizens to govern themselves.

One of the most acute threats posed by the leftist approach to international law is to the ability of nations to defend themselves. As Peter Berkowitz shows in his short but thoroughly insightful new book, Israel and the Struggle over the International Law of War, terrorist groups and their state sponsors use international law as a political weapon, with liberal democracies – mainly the U.S. and Israel – as their targets.

Peter focuses on two recent abuses of international law, both directed at Israel. They are: (1) the U.N.’s 2009 Goldstone Report on the Gaza conflict and (2) the response to the Gaza flotilla affair in 2010.

Peter demolishes the Goldstone Report, which Justice Goldstone himself has partially retracted. I have never been sympathetic to the case for expanding the authority of international institutions to take primary responsibility for critical judgments about the lawful conduct of war. In light of Peter’s discussion of the Goldstone report, that case becomes impossible for me to fathom.

Israel is, to be sure, a special object of hatred by the international community. And unlike the U.S., it is surrounded by neighbors who would like to see it disappear. Moreover, Israel has no Security Council veto to insulate it from the machinations of its enemies. So the U.S. faces less risk from the expansion of international authority over the conduct of war.

But, as Peter argues, “the danger is that the spread of practices among international bodies and an accumulation of precedents concerning international law will weigh down the United States in the struggle it shares with Israel, and all civilized nations, to combat, in accordance with the international laws of war, international terrorism.” It is essential, therefore, for America to resist the pressure from the left to embrace such practices and precedents.

The lessons from the international legal community’s reaction to the Gaza flotilla incident are similar. At the heart of the case against Israel was the view that the Israeli blockade of Gaza is unlawful. Peter shows that this view is baseless under well-established principles of international law. Yet a “flotilla” of international lawyers and professors has tried to twist the law into supporting the view that the Israeli blockade is illegal. In the process, they demonstrate how easily international law becomes politicized.

Peter’s goal is to tame (or “conserve,” as he puts it) the international laws of war, by combating the kind of error he identifies. This conservationist task, he says, ultimately depends on the training received by the young men and women who will assume responsibility for the preservation and elaboration of the laws of war.

Peter concedes that conserving the international laws of war thus requires “a major reform of educational affairs.” Because I see little hope for such reform, I see little reason to believe that the international laws of war can be tamed.

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