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Issue Date:  July 28, 2006

International law under attack

Fewer double standards would enhance world security, says expert


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 Korea’s test of ICBMs, India tested nuclear missiles, but there’s been no mention of bringing India before the Security Council. Why?
: 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 it’s been treated as part of an acceptable use of air space and ocean in this period of history, it’s 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 hasn’t 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.

There’s a great deal of hypocrisy in the American position because at the same time it’s censuring Iran for taking this step, it’s silent about Israel’s nuclear weapons. The United States is now entering into an elaborate cooperative agreement with India in regard to developing nuclear technology. It’s 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 Israel’s subsequent move into Gaza is an ongoing story. Some have accused Israel of war crimes in bombing Gaza’s 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 Gaza’s power plant both because it’s a non-military target and because it’s 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 it’s 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. It’s not only unlawful, it’s 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 that’s 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 I’ve not thought a lot about it, is that it is not intrinsically a violation of international law. If he’s 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.

Let’s talk about Lebanon. How does international law apply to what’s going on there: first, Hezbollah’s capture of two Israeli soldiers and, second, Israel’s response to that?
Again, the issue of Israel’s response is clearly one that raises serious international law issues because it’s disproportionate, because it targets civilian sites, because it’s caused heavy civilian casualties. The Hezbollah abduction of Israeli soldiers does seem to me a violation of international law. They’re not engaged in some kind of relationship based on the law of war. There was no, as far as I know, sufficient provocation on Israel’s 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.

What’s the state of the international system today? Is this a broken system and what will it take to fix it?
It’s 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. That’s 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. It’s 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, I’ve 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. ... It’s 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 we’re 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

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