The Dispatch Podcast - So, About International Law

Episode Date: October 30, 2023

Jamie Weinstein begins his tenure as host of Monday Dispatch Podcasts with a discussion with Jeremy Rabkin. Rabkin, a professor of law at the Antonin Scalia Law School at George Mason University, explains what exactly international law is and how it's relevant (or irrelevant) to Israel's war against Hamas. -Law without Nations?: Why Constitutional Government Requires Sovereign States -Rabkin's profile at GMU Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. This is Jamie Weinstein. Starting in November, I will be taking over hosting duties of the dispatch podcast on Mondays, but with the world in crisis, I thought I would pitch in a little bit and try to help add coverage to the ongoing crisis in the Middle East. One question that keeps getting brought up on Twitter is, what is international law? Is Israel abiding by international law? Who is even in charge of adjudicated? what is international law. To answer this question, I brought in Jeremy Rabkin. He is a professor at George Mason University Scalia School of Law, where he teaches courses on international law and the law of armed conflict. He's also the author of books such as Law Without Nations in the Case for

Sovereignty. And 20 years ago, he was my advisor at Cornell University. And with that, to help us answer the question of what exactly is international law? Here's Jeremy Rapkin. law is kind of intuitively understood. If we get a speeding ticket, you know, there's a law that we have to pay or we're to get in trouble. We do a crime to somebody. You punch somebody.

You're going to deal with a law. International law seems a little bit more in the air. What exactly is international law? Yes. People keep talking about it. This is clearly against international law. And you have the sense that, oh, you could just look it up. in the Code of International Law.

What you said at the beginning was domestic law was intuitive. Even if it's not intuitive, it's easy to look up. Lawyers who don't have that much sophistication can find out quickly because we know where to go. International law is a very large collection of treaties, many of which present questions about how to interpret them. And then there's a certain body of customary practice, which is, of course, even harder to look up because it's not recorded in one place. So people who say confidently, this is against international law, to say it charitably, they are overconfident.

So, I mean, to get more specific, obviously, every time Israel gets into a conflict, you start hearing a lot more about international law than you did before. What are the limits? I mean, obviously they're fighting an enemy who, you know, doesn't, you know, is a living example of a breach of international law if there is one. What are the limits of a country like Israel when they get in a conflict of this according to international law? Yeah, so again, I want to caution people say, like, international law, like there's one treaty. It's actually very complicated to start with the.

There's a body of practice, which, if you're being generous, you could say it goes back many centuries, but certainly was recognized in the 18th century, and there were books written about it. There was an effort to codify this in 1890 at the Hague Peace Conference. Those are the rules in effect during World War II. As you may remember, during World War II, we reduced most German cities. to rubble. A lot of people died. There wasn't a lot of debate

about whether that was against international law. And people say the Nuremberg trials were victor's justice, which is sort of true, but we didn't charge any German defendants with bombing of cities because we realized, oh, well, we did that, that's probably okay. So when they say, oh, Israel's violating international law,

If they mean anything, they mean this treaty that was negotiated after the Vietnam War. It's called the additional protocol to the Geneva Conventions. It happens that Israel is not a party to it. It didn't ratify it. The United States is not a party to it. A number of important countries are not a party to it. So what they actually mean, if, again, if they mean anything, is, well, it doesn't matter that Israel didn't actually ratify it because it's become customary law.

It helps us understand what the customary law is. This is a unique example of customary law in which hardly anybody actually follows this custom, but it's still become a custom. So they have a very, again, exaggerated idea of this. But to come to the, I think the question that you're asking, you are not supposed to aim at civilian targets. Fair enough, right.

Israel will say, I think honestly and truly, it's not aiming at civilian targets, it's aiming at military targets. You're not supposed to have collateral damage to civilians if it's excessive in relation to the concrete and direct effect military advantage of this targeting of military targets that has collateral effect on civilians. That is notoriously disputable, uncertain. We don't know what a direct and concrete military,

advantage is from anyone attack. I believe it is true that there have been a number of war crime trials in the last 30 years. I don't think anybody has been prosecuted, let alone convicted for failing this proportionality test because it's so hard to apply. So I can't stamp my foot and say, no, Israel's never crossed this line. They do have very smart lawyers who work pretty hard to like stay on the right side of this line. But anyone who is honest has to admit there's just a lot of uncertainty about how to apply the standard.

Let me give you some headlines from news articles that recently were published. From ABC News, the headline is how international law applies to war and why Hamas and Israel are both alleged to have broken it. In the story, it says, quote unquote, the Geneva-based international committee

of the Red Cross has said the instructions for hundreds of thousands of people to leave their homes, coupled with complete siege, explicitly denying them food, water, and electricity are not compatible with an international humanitarian law. Does the international humanitarian law differ from international law? And is that actually a thing? No, no, no, no, that's just the Red Cross likes to call it that, because it implies that the humanitarian considerations are paramount, which if you thought about this, you realize, well, no, that's crazy. I mean, it's like really important. to win. And it's not a lot of consolation that, well, we did lose, but at least we protected

humanity if you are fighting a monstrously inhumane enemy, right? This is crazy. It's what they think. They congratulate themselves on being neutral. And it's worth just reminding ourselves they were neutral in the Second World War. They went through the entire Second World War. They did not have a peep of protest. They didn't even reveal facts which they knew about the Holocaust. because that would compromise their neutrality. A lot of people think, and it is my perception, although they're neutral, neutral, neutral, the neutral-leaning third world,

and I have a reason to be leaning third world to use a somewhat out-of-date expression, because Israel is vulnerable to their criticisms. Hamas doesn't care what they say. And Hamas will just say, no, you can't come in here. That'll be the end of it. So they try to accommodate them. They try to kind of curry favor with them.

And I think in general, they want the non-Western world to play with them and respect them. So they kind of lean towards accommodating the non-Western world. To your question about, is this, I mean, the wording of that is a little bit interesting, right? Because they're like, oh, maybe it's not compatible. There's no specific prohibition in the additional protocol against sieges. sieges are time-honored practice in war. But that is not even really what Israel is doing. What Israel is doing was saying,

we are not going to supply the water or the electricity or the food. If you get it from Egypt, okay, go ahead. Israel is now actually involved in the negotiation to see that Egypt supplies them. But its first position was, you were depending on us to supply it, we're not supplying it, and they are not obligated to supply it.

The second thing is they say, oh, you gave this instruction. What they said was we're going to be doing a lot of fighting in the northern part of Gaza. If you want to be safe, you should move. And I think it was reasonable for them to say, you really should move, even though Hamas is going to try and pressure you to stay here in continuous human shields. You should move because you may get very thirsty if you try and. stay. I don't think that is monstrous. I think that is sensible.

It's encouraging people to move to a safer place. The Red Cross has its view of how it would fight the war, which is very nice, except it never has fought a war. It's host. Switzerland has not fought a war in 500 years. So I don't know how these people became authorities

on what is an acceptable military tactic, and I'm not being sarcastic. The relevant question here is, what is militarily feasible? And you don't know that from sitting on the sidelines saying, I think it would be more humanitarian if you waited a month. Well, maybe it would. I don't know.

From an AP story entitled, experts say Hamas and Israel are committing war crimes in Gaza. The story goes on to say, experts say the blockade, which is hitting the territories more than 2 million residents, violates international law, quote unquote, collective punishment is a war crime. Israel is doing that by cutting off electricity, water, and food from the Gaza Strip, said Omar Shakir, Israel, and Palestine Director of Human Rights Watch. Yes, fine.

So this is what experts so-called do. They say, oh, someone was, if you remember, there was that incident about, when was it about two years ago in St. Louis maybe, where the police rushed in and they were shooting and someone was killed. And then everyone said, this was obviously unlawful.

There was Ferguson. This was obviously unlawful. It's very easy from the sidelines when you don't know all the facts to jump to a conclusion. And it's particularly fun to do if you like being demagogic and demonizing some pre-chosen opponent

like the police, or in this case, the IDF. They're saying collective punishment. Israel didn't say we want to punish civilians. And I think it's at least complicated to say what do you mean by collective punishment once you admit that actually it's not impossible to have a siege, which, again, is something that has been done in previous wars. I think it is possible that the International Criminal Court, which is never punished

anybody outside of Africa so far, it's punished maybe 12 people in all, even in Africa. It's a fairly farcical organization. So it's basically the judicial arm of the UN General Assembly. It passes, you know, it makes indictments which you can't follow through on, and then it says, I think it's possible there will be an indictment of an Israeli. I don't know what that shows, except that some people like to hurl demagogic slogans. I don't think collective punishment is a reasonable description.

Is there a classical definition of collective punishment? It seems that any time someone thrust their country into war by attacking another, the whole country is, in a way, collectively punished. So I think what people meant during the world wars was Germany frequently did this thing, this had this practice. If a German soldier is killed or injured, we will take out 30 people from the village where this happened and shoot them down. That is collective punishment. You deliberately cause the death of civilians. You kill civilians as a punishment. I think it's a very long way from that to saying if you impose a siege, that is collective punishment. The premise

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Al-Shifa Hospital in 2014, the Washington Post said, was a de facto headquarters of Hamas. This is what we're talking. Everybody says, I mean, everybody who, like Congressman Tel Aviv doesn't say this, but people who claim to be so-called experts will acknowledge, okay, it's wrong to use human shields. they will also say once the human shields are in place you have to be mindful that there are civilians

okay that's fair enough but if you allow civilian shields to be an absolute veto on attack then you're saying that a terrorist organization can always attack with impunity as long as it is first captured some civilian shields which is insane

I mean that cannot be our war duck because then terrorists would rule the earth. Just step back for a minute and think about real life. Suppose, which can very well happen, a terrorist cell in London grabs a bunch of hostages and then says, don't try and get us out of the court's building or this part of Buckingham Palace

or this part of the parliament because we'll kill the hostages. Well, that's really... challenging. I think the first thing you might do, which is commonly done in these sort of situations, is you cut the electric power, you cut the water, you do all these things to try to force the terrorists to give up. If you say, oh, well, we can't hurt the hostages, that means we have to provide electric power and water and foods to make sure the hostages are taken care of. You're saying they can stay for as long as they want. That's crazy. And it doesn't, it's not the

practice anywhere in the world, because it is crazy. The one word that sticks out from the international law course you taught me 20 years ago as a freshman at Cornell, the one word... Like in the good old place. Yeah. Was reciprocity. Yeah. Not that Israel would want to act like Hamas, but to the extent that Hamas is not even, you know,

recognizing international norms. Yeah. Does Israel have any obligation to if their opponents don't? If you go back to the first effort to codify the law of war in 1890, they stipulate these rules will only apply in a war where all the participating states adhere to these rules, because they were very mindful that otherwise it's sort of a trap. You accept restrictions and then the others violate them, so that can't be right. So it would only apply where everyone adheres to the rules. Now, what if some country says we're going to adhere to the rules

and then in the course of the fighting it says, never mind we're not adhering to it. Ha ha, ha, tricked you. So they have this doctrine called reprisal. Reprisal is in a way the mirror image of reciprocity. Reciprocity is we hold back if you hold back. Reprisal is you violated the rules

so we get to violate the rules to that extent. That can get very ugly. Everybody agreed before the First World War that you should never use poison gas. The Germans did it first. Then the Western allies said, okay, you did it, now we're doing it. In the Second World War,

there was this notion that you shouldn't be bombing cities. The Germans did it first, and then Britain said, okay, you did it, now we're doing it. So that can get really out of hand and not in any way advocating that Israel should try to sink

to the depths of Hamas and do everything that Hamas does. But people do just have to keep in mind the law of war was not really designed to deal with a situation like this in which one side has no restraint, none, zero. There seemed to be nothing at want to. And then you expect the other side to fight with perfect restraint and no one gets hurt. It doesn't make sense to conduct a war like that. If those are your rules of war, you're saying you favor the terrorists, which is, again, just, it's crazy. How are these things ultimately adjudicated? Again, I go back to the

beginning question. We know if we violate a law in the United States, you know, what courts we go to. Yes, I thank you for bringing that up. This is when all these people say confidently, whoa, this is against international law. They are talking about it as if it is like the Internal Revenue Code, where we know with a high degree of confidence what various provisions mean because they've been extensively litigated and we have a lot of court decisions, including often Supreme Court decisions. There's nothing like that in international law. I mean, there is this thing. International Court of Justice, it has virtually no cases about the conduct of war because it's voluntary and no country has ever said, oh, yeah, sure, we will allow you to hear this case.

So you're down to a handful of very limited tribunals like the International Criminal Court, which, as I said, has had 12 cases, and not, most of them are not. not even tangentially relevant to exactly how to conduct hostilities. There's a few cases from the Balkan Tribunal. But mostly, we don't have court cases. And since we don't have court cases, it's wildly misleading for people to say, I know exactly what it means.

It hasn't been litigated. It hasn't been authoritatively interpreted. But I still know what it means because it should mean what I want it to mean, right? This is totally misleading in democracy. I mean, what if, let's say the ICC took on this case, and said, you know, Benjamin Netanyahu, you're indicted, or even Israel Hania, you're indicted.

How do they get, do they have a force to arrest them? If they have a force to arrest them, it would be really helpful to arrest them. I mean, of course they have no way to arrest them. Let's just step back for a minute. Before we were all preoccupied with the Middle East, there was a war in Ukraine. You remember the war in Ukraine.

And people are saying, Putin must be held to account because he must be held to account because he must be held to account. Well, that's a nice thought. He's not going to be held to account. I mean, that's not going to happen. The only thing that you might hope for is that he'll be overthrown and executed by Russians. And I don't even think that will happen.

But, I mean, of course, he's not going to be extradited to an outside tribunal. And this goes not only for Putin, but for his top generals. So they are trying people who are, you know, sergeants and corporals who they happen to capture, which is fine, but we're not going to have an adjudication. And the likelihood is that if there is a peace agreement, which we all have, hope there will somehow be a peace agreement. It's not very likely that the Russians will say, okay, in return for peace, we're going to hand over our top officials

to be tried in the hay. This just doesn't happen. The only way you've got the top officials is when you have an unconditional surrender as in Germany and Japan. So to come back to your question, the Hamas people hopefully will end up dead. If they're not all dead, maybe Israel can have a trial. and maybe that would be satisfying.

They're not going to be extradited. I don't believe any Israeli will be extradited. In practice, what you mean when you say the ICC is going to indict them is that whoever is indicted on the Israeli side should not travel to the Netherlands. We've spoken about kind of the combatants here, but there are some outside countries that sponsor them, fund them, allow funding to occur. Qatar comes to mind where the head of Hamas lives.

to the extent that international law speaks of that, is that against international law? Could there be consequences for funding a terror group? I think it's silly to talk about international law here. These are countries with which the United States has, let's say, shared interests and conflicting interests. And the United States may or may not say to Qatar, or if you want to have friendly relations with us,

you've got to arrest the Hamas leadership and extradite them. I don't know whether we will do that. I'm not even sure we should do that, but this would be American foreign policy. There's no point talking about international law. So you think the Emir of Qatar cares more about what America will do rather than being indicted by the ICC? Oh, he wouldn't be indicted by the ICC.

I mean, yes, and I don't think he cares about that either. No, I mean, if you have to ask the question, you're living in an alternate universe. Of course, they care more about what a real power would do, and they don't care what a silly thing in the Netherlands would do. Is there anything else that you think the listener should understand about international law as people use it today or as it was applied hundreds of years ago or at least thought of hundreds of years ago? Well, let's not even talk about hundreds of years ago.

Let's just talk about 100 years ago. I don't think there's any doubt that the Allied powers in the Second World War cut some corners, let's say. They did things which would not ordinarily have seemed to be consistent with international law. Just to take a real clear-cut example, we said to neutral countries like Morocco, we're landing troops in your country because we need to. Iceland, we're sending troops into your country because we need to. Sorry about violating your sovereignty. We need to. It's really urgent.

And people at the time reasonably said, yes, we are, let's say, deviating a bit from the best standards of international law, but there's not going to be any international law if we lose. And that was a very, I think, clear-sighted and correct understanding. International law is not this magic force that, you know, encircles the world and it makes sure that the bad people are punished and the good people are protected. We hope that God is doing that, but we know from experience not reliably as we wish, hope. So the international law is a slogan if you're in. engaged in a struggle with powers that are contemptuous of international law.

It's up to the powers that are broadly in favor of, if you like, humanitarian restraints in war to win their war. If they don't win their war, there aren't going to be humanitarian restraints in war. And so with protecting sovereign states, I mean, Hamas is saying openly, I want to add just one quick thing, which is just... disregarded completely. Hamas keeps saying openly, our aim is a destruction of Israel. You know, it's a member of the United Nations. Hello? The United Nations guarantees the territorial integrity of all the members. Hello? Does that matter at all? Well, it's not going to

matter if Hamas prevails. I think it's not going to reliably matter if Russia succeeds in carving out larger chunks of Ukraine. So if you care about the UN Charter, you might hope that the good guys win these battles and not pretend that it's just a given that if you are good, then the other people will be good and international law will protect all of us. This is completely escapist and silly. Professor Rapkin, thank you for joining the Dispatch Podcast. You know,