"Lawfare" against Israel

The point Richard Cravatts is trying to make doesn't justify the 1300+ words he spends making it. In essence, his complaint is that NGOs are using international judicial bodies to circumvent Israel's foreign policy in an unfair, arbitrary and harmful (to Israel) manner:

Lawfare enables NGOs to interfere with the military policy of nations with whom they arbitrarily disapprove, and its current use has been focused almost exclusively on Israel, framing the Jewish state as the abuser of human rights and engaging in criminal acts against the perennially victimized Palestinians. The danger, as Ms. Herzberg sees it, is that such litigation, initiated by groups like Human Rights Watch (HRW), Amnesty International, World Vision, Save the Children, Al Haq, and others, is often based on a very narrow and preconceived ideology about who deserves rights and protection and who does not, and this bias is almost universally against Israel.

Naturally, the fact that notoriuos disrespecters of international law such as Amnesty International and Human Rights Watch, are concerned with the fate of of Palestinians presently living on the poorest strip of land on Earth, is evidence of a bias against Israel. Never mind that both organizations also condemn the actions of terrorists and that, last time I checked, they were not in the habit of siding with powerful nations against downtrodden groups (being as powerful nations generally find other ways to deal with their downtrodden and restless natives); if they do not understand Israel's need to bomb Palestinians now and again, they clearly operate with a "narrow and preconceived ideology."

Now, one might ask what concrete effect such acts on the part of these NGOs has had on Israel. Cravatts obliges with an answer:

As proof that lawfare against Israel can embolden and even provide moral and legal cover for some of the world’s most egregious human rights offenders, Iran has inanely announced that it was establishing a special court to try Israeli officials, in absentia, for their war crimes committed in the current Gaza operations. Justified by a 1948 U.N. convention on the prevention of genocide to which Iran is a signatory, Iranian Foreign Minister Manouchehr Mottaki asserted that Israel obviously was committing "genocide against humanity" in Gaza, and that Iran, one of the world’s most deficient nations for the protection of human rights, would now stand in judgment of Israel. "The court is in a special branch in Tehran,” crowed judiciary spokesman Alireza Jamshidi, “and entrusted with the task of dealing with the executors, planners and officials of this [Israeli] regime who have committed crimes."

So, if you follow, the fact that Iran has apparently instituted a kangaroo court for trying Israeli officials (that they will never, ever get their hands on) is evidence that suits against Israel in international judicial bodies emboldens the enemy.

I really don't know what to make of arguments like this. If Israeli hawks are so certain of the moral justice of their actions against the Palestinians, why would they be concerned about the extremely non-binding "advisory" opinions of international courts? 

If my study of law has taught me anything, it has taught me that when someone wants to prevent you from even being able to make your case in court against them, it's usually because they aren't on the most solid legal ground. Granted their are vast differences between the local district court and the International Court of Justice, but the principle is essentially the same.

A Thought I Had Driving In

For most purposes, approaches to our nation's foreign policy can be divided into three camps:

1. People who think there should be no limitations whatsoever on our actions, that everything we do should be justified by self-interest, and that our interests are never actually (or are rarely) harmed by behaving in accordance with that belief.

2. People who think the same, but realize that there are times where such behavior is actually damaging to our interests and so moderate their approach when there's a possibility (to one degree or another) ofblowback or unintended consequences for behaving as such.

3. People who generally believe that we should act in our own self-interest when necessary, but also believe that the United States and other nations should be subject to the international rule of law (and may believe that being subject to such law actually benefits our nation in the long-run.)

Naturally, this is a simple-minded list and is not really meant to be a definitive statement on the diversity (or lack thereof) of opinion on foreign policy by those who work in that field. But I think it's sufficient to describe the general thoughts of lay people such as us. Agree? Disagree?

Liberal Hawks

Peter Berman, still wrong about Iraq:

...something is missing from our modern way of discussing the world. We know how to describe certain things—and have forgotten how to describe certain others, which are sometimes larger. This has been true of the war's proponents, except for a few of us lonely liberals (and even we have been inconsistent), and true of the war's opponents. It is a vocabulary problem. The words are missing.

The language of WMD, Bad Guys, humanitarianism, and all the rest cannot describe these movements and their doctrines and their fanaticism. We know how to speak about member states of the United Nations. But totalitarian movements have always been international, with and without state support. We have lost the ability to speak about mass international movements of that sort.

What was the reason for the war in Iraq? Sept. 11 was the reason. At least to my mind it was. Sept. 11 showed that totalitarianism in its modern Muslim version was not going to stop at slaughtering millions of Muslims, and hundreds of Israelis, and attacking the Indian government, and blowing up American embassies. The totalitarian manias were rising, and the United States itself was now in danger. A lot of people wanted to respond, as any mayor would do, by rounding up a single Bad Guy, Osama.

If you're wondering what on Earth Berman is talking about, welcome to the club. Indeed, something is missing from the modern world, or at least Berman's version of it. It's called rationality. Awhile back in response to a post by Matthew Yglesias, I wrote about how liberal hawks just don't get what was wrong with their rationales for the war. For Yglesias, it was the belief that the humanitarian rationale for the war would work out in the end. For Berman, it's all about 9/11 and totalitarian Islamic movements. In fact, his fear of totalitarian Islam is so great that there are no words for it. Never mind that we came up with plenty of words to describe the totalitarian movements of the 1930's and 40's, movements which posed a considerably more dire threat to us than terrorists ever have.

I honestly don't understand how anyone can conflate what the terrorists did on 9/11 with an existential fear for the future of our country. I can't explain it, and neither can Berman, because there is no explanation. It's irrational. It's fear, plain and simple, which comes in pseudo-intellectual varieties just as often as it comes in the wet-your-pants variety you or I might experience on a daily basis. It's the same sort of thinking that leads Jaime Kirchik to think that we're entitled to return Somalia to chaos on the basis of some possible negligible benefit in the GWOT.

The simple truth of the matter is this: the best argument for war in Iraq was that Saddam Hussein had WMDs, and was preparing to use them on our country at some point in the future (not the imminent future...just the future.) This wasn't good enough at the time to justify invasion, as was clear to me and my co-bloggers in 2002 and 2003. But that rationale has long ago been revealed to be a fraud and a lie, and now those who want to have been right about Iraq despite the results cling to notions that it was still reasonable to invade despite the fact that the primary rationale has proven to be false. And so now they resort to things like Peter Berman's fear of totalitarian Islam. Never mind that no combination of Middle Eastern nations pose the same threat to us that Nazi Germany or Soviet Russia did. Never mind that our enemies are not unified in any sense of the word. Never mind that no terrorist proponent of an Islamic dictatorship has the ability to control the government of even one minor Middle Eastern nation. No, there are "no words" to describe the fear.

In fact, what's clear at this point is that there are no words to describe the variety of completely irrational motivations for the war in Iraq, and that there is a certain segment of our society-mostly on the right, but some on the left-for whom irrational and improbable fears justify the invasion of sovereign nations and the killing of hundreds of thousands of Iraqis.

It's Legal

Or so the Justice Dept said, of certain "enhanced interrogation techniques" more commonly referred to as torture. From this NY Times article emerges the clearest portrait yet of the infighting that took place in the DOJ in regards to the legality of torture techniques, and the lengths to which Alberto Gonzales went to put an end to the dissension:

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

In other words, according to the NY Times timeline, Yoo and and Bybee authored the torture memo in 2002, which was repudiated by Jack Goldsmith in 2004 (conveniently in time for Gonzales' confirmation hearings) this repudiation which was then secretly repudiated by another memo which listed several of the same techniques utilized by the CIA that are not considered torture even under the language then being considered then by Congress for the Detainee Treatment Act, a memo that members of Congress did not know about even as they were passing the bill.

If you want to know why it's very difficult for persons such as ourselves to take the Bush administration seriously in any respect or believe any claim that they publicly make, this is why. Because they are more than willing to issue opinions, documents or whatnot that will conveniently allow them some political maneuvering room, while at the same time in secret or behind closed doors continuing to do exactly what they've done all along...acting as if no one will actually find out about these games. To think that no Presidential administration does this to some extent is incredibly naive, but the Bush administration has taken it to new levels of egregiousness and insult, and they have done it over matters crucial to our national security and standing in the world. Here's Jack Balkin on this news:

Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.

What is particularly amazing-- and disturbing-- is that the revelation of the first torture memo had no effect on the Gonzales Justice Department. Instead, they resorted to misleading the public and twisting the law in secret opinions.

It is well worth asking how many other secret opinions the Justice Department has produced during the Bush Administration that justified violations of the Constitution, federal statutes, the laws of war, and international human rights.

And we need to be clear about the purpose of these memos. A memo crafted in secret is never one that is intended to explain or justify to the legality of particular measure the administration is taking in an effort to broadly justify such an approach. Such a memo serves a post hoc purpose; it's an excuse, handy for those who act under the "authority" of the memo who seek to avoid legal liability for what they do, in the way of either staying out of a court or as authority to cite to when they must defend themselves in court. It's a stay-out-of-jail-free card, or a note from mom to your school explaining why you skipped the day before. The memo itself doesn't really have to be legally supportable or believable to any truly rational person; you just have to show that it was good enough for you, an agent of the government, to rely on. That my friends is a pretty low bar given the unwillingness of courts to find government agents legally liable for the actions they take on behalf of the government. It's also a handy way to subvert the rule of law, and the system of checks and balances enshrined in our Constitution that lies at the heart of our democracy. But, small price to pay to be able to slap a few terrorists around, right?

The Limits of Outrage

No one who has followed the situation in Burma can react with anything less than disgust and anger with which the military junta has brutally repressed the popular demonstrations that erupted this month and last. But there are limits to what even the fiercest outrage and anger can do, as George Packer acknowledges in a post at his blog (accompanied by a graphic picture of a dead monk):

Aye Chan Naing, D.V.B.’s executive director, told me by phone from Oslo that as many as six thousand Burmese, the majority of them monks, have been detained in four locations around Rangoon, and their fate is uncertain. After nightly raids, the monasteries are “totally empty,” and he fears the worst for the detainees. But, staving off despair, he’s been mildly encouraged by the reaction of Malaysia, Thailand, and even, in its tepid way, China—quite different from their response after the brutal crackdown of a similar uprising two decades ago. At that time, Aye Chan Naing was two months away from completing his degree in dentistry in Rangoon; he became involved in the revolt and ended up an exile in Thailand and then Norway. “The change must come from inside Burma,” he said, “but I don’t know how much the Burmese people can resist this kind of violence. They need some help from outside.”

Andrew Sullivan quotes a reader who says much the same thing:

f freedom is to be gained in the near-term, the Burmese junta need to be dealt a death blow that can only be administered through military defeat. Satyagraha merely provides the reason for an SPDC soldier to pull a gun out and blow someone's head off for defying an order to provide labor, food, possessions, sex slaves, or whatever is demanded by the junta. Perhaps over the longer term the strategy of non-violent resistance could work, but this presumes that the Burmese junta and its allies such as China will come to value and honor the will of the people, which seems unlikely.

There is no negotiating with SPDC thugs, only submission is tolerated. They are cunning, vicious, and too comfortable in their luxury and power to ever give it up willingly. The democracy movement within Burma cannot count on other nations to overtly come to their aid, and China's appetite for resources is too sated by the junta for any alteration of diplomatic course.

Put simply, the tyranny of the military junta in Burma is so great that they care little about the opinion of anything but their closest trading partners, and even then only to the extent that it does not in any way threaten their power.

Democratic movements everywhere should be supported. Mostly this entails a sort of moral support, accompanied by letter writing campaigns and the threat of boycotts and sanctions. But in dealing with particularly vicious tyrants, such threats are almost meaningless. At best the tyrant will accommodate the outrage to the extent necessary to make an issue go away (for example, no more shootings in the street...while nonetheless dissidents are rounded up and quietly "disappeared.") Truly vicious tyrants can be unseated by only one means, and that's force.

But it's no easy to step from moral support to aiding an active and violent revolution. It's one thing to write emails to the representatives or aiders of a dictatorship, and quite another to secretly ship arms into their country to insurgents. International law and common sense require that nations tread lightly when it comes to interfering with the sovereignty of other nations, for the reason that support of convenient rebellions out of naked national security interests has so often been masked as support for democracy and freedom.

And yet there comes a time when it's simply not enough to accept that we must sit back and watch as people are murdered by a violent regime, out of fear of overstepping ourselves. No one in their right mind can argue that direct military intervention in a place like Burma is a tenable alternative. But there are steps that can be taken short of that. Providing rebels with food, medicine, safe haven-and yes, weapons-is intervention, make no mistake about it, but a kind that can be supported under a reasonable moral calculus.

So far there's little talk of doing more to aid the Burmese people. Unfortunately, support of rebellions and insurgencies is often taken only when it also supports national security interests (and never when it's against national security interests) and no one right now has an interest in angering or provoking China by encouraging the downfall of one of it's "allies." This isn't likely to change soon.

But it's clear that the Burmese people lack only the ability, and not the willingness, to undo their rulers. How to go about helping them do that is something that all free nations should be willing to talk about, even after things quiet down.

Preventive vs. Pre-emptive

I'm not done reading this article on Hillary Clinton and her vote on the Iraq war yet, but I didn't get very far without being irked by a mistake I see commonly made in discussions of the war:

For Senator Clinton, reaching a decision on an American-led invasion of Iraq during the fall of 2002 involved a knotty set of calculations, some of which seemed preordained. If she voted yes, she would be giving President Bush the authority to launch a preemptive war — a concept that must have reminded her of America’s failed war in Vietnam, which she opposed as a student at Wellesley College and Yale Law School.

Once again, it must be noted that the Iraq war was not a preemptive war. It was a preventive war. I'll allow this Wikipedia entry to explain the difference fairly succinctly:

Preventive war is war launched in anticipation of a future loss of security or strategic advantage. Preventive war is sharply distinct from preemptive war, or anticipatory self-defense. Preventive war is only claimed to prevent a hypothetical attack which might occur in the future; for example, a war launched to prevent an adversary acquiring more powerful weapons. In international law, preventive war has no recognized status as distinct from a war of aggression. Many, if not most wars have been characterised as "preventive" in nature, often by both sides of the conflict.

The primary distinction is one of imminence of the threat. A preventive war is launched to remove a future potential threat. A preemptive war is launched to destroy a very real threat that is very likely to manifest itself as an attack on the preempting nation in the very near future. A nuclear strike on a country that you know is very close to launching a nuclear strike on you is a preemptive war. The Nazi invasion of Russia in 1941 was a preventive war. Preemptive war is recognized as legitimate under international law because international law recognizes the right of sovereign nations to defend themselves and does not require that those nations actually be attacked first (thus suffering a potentially devastating strategic setback) to do so. Preventive war is not recognized as different from a war of aggression because the threat is only hypothetical, and there is no real possibility of imminent attack. And, as you can well imagine, the threat of hypothetical future attack has been used to justify quite a few simple wars of aggression in the past, where the aggressor played up or hyped the threat of enemy attack to get his countrymen to sign on to an invasion. You know, kinda like we did with Iraq. I opposed the war in Iraq even though I was sure that Saddam Hussein possessed WMDs, because I knew (as would anyone who wasn't an idiot) that he was in no position to use them on us without suffering massive retaliation (and likely death) and even if he was considering using them, our response-invasion-was all out of proportion to the imminence of the threat. That's why the discussion over whether Iraq had WMDs is a red herring. Unless he had had WMDs pointed directly at us or our troops and was drawing up plans to use them or give them to terrorists to use on us, we were not justified in launching a full-scale invasion. There was never any evidence that he was, but our discourse on the war is still screwed up that nobody even seems to talk about that.

Anyway maybe you think I'm quibbling over technicalities of law, but I don't think you have to be a scholar of international law to recognize the difference. Four years into this gig, a journalist ought to know the difference as well.

U.S. rejects ban on cluster bombs

The United States had rejected an international call to ban cluster munitions, after 46 nations met in Oslo pledged to seek a treaty to do so next year.

Dropped from aircraft or fired by artillery, cluster munitions open above ground and disperse dozens to hundreds of tiny bomblets over a wide area. Although designed to stop armored assaults, bomblets have fallen on civilian areas and littered fields long after the end of hostilities, most recently in Lebanon. And the smaller bombs do not always explode on impact, which means they can continue to kill innocent civilians years later. A recent report by Handicap International claimed that 98 percent of casualties from cluster munitions are non-combatants.

Since 2005, the Defense Department has required that newly purchased submunitions have a failure rate of less than one percent. Human Rights Watch, however, estimates that only about 30,000 of the millions of cluster munitions currently in the US arsenal meet the that criteria.

Much like the rejection of Kyoto, the International Criminal Court, and a ban on landmine use, the United States is again bucking international will it should be leading. Luckily, Democratic Senators Diane Feinstein and Patrick Leahy have introduced legislation that would bar US use of cluster bombs in or near civilian areas or that have a "dud rate" of one percent or greater. We can only hope for its speedy passage to end this inhumane practice.