The Volokh Conspiracy
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Mission to Israel Part II: What I Learned About International Law From Israeli Lawyers
The primary effect, if not purpose, of international law, is to use lawfare to punish Israel, and by extension, the United States.
[This is the second post in my series on my mission to Israel. Part 1 is here.]
I'll put my cards on the table. I've long had a cynical perspective of international law. I was completely unmoved by the notion that foreign tribunals, with systems of government completely alien to our own, could establish "norms" and "customary" international law. I always saw international law as a ruse for progressive lawyers to give their policy preferences the patina of some sort of quasi-binding law. My mission to Israel has reinforced that perspective in ways I could not have even fathomed.
The World Jewish Congress, to its credit, did an admirable job in lining up a series of legal experts from across the spectrum. We met with, among others, a former Attorney General, a Dean of an Israeli law faculty, two Israeli military lawyers (known as Military Advocate General, or MAG), a lawyer at an NGO working on returning the hostages, a lawyer who participates in proceedings before the International Court of Justice and the International Criminal Court, and more. All of these jurists provided a thorough overview of how international law operates with regard to Israel. They also entertained all of my questions, even some that were a bit hostile. I was thankful for this opportunity. My conclusion: the primary effect, if not purpose, of international law, is to use lawfare to punish Israel, and by extension, the United States. If you're bothered by that statement, please stop reading.
Let me start with an example that will make some sense to American readers. What was Jack Smith doing before Attorney General Garland appointed him as special counsel to prosecute Donald Trump? Smith was serving as a prosecutor at the International Criminal Court in the Hague. The ICC exists to prosecute individuals for, among other offenses, war crimes. The Court has sweeping jurisdiction to prosecute crimes if the "defendant's" home justice system is unable or unwilling or lacks the ability to prosecute him. Under the principle of "complementarity," the International Criminal Court will "complement" a deficient criminal justice system.
The very notion of this court is that there can be some sort of free-floating, independent institution to bring powerful figures to some sort of justice without regard to politics. Is it any wonder Garland picked the person who was prosecuting war crimes in Kosovo to go after Trump? To Garland, Slobodan Milošević and Donald Trump warrant the same prosecutor. [As an aside, one of the few virtues of the Independent Counsel statute was that the judges of the special division selected the independent counsel. At least the judges could try to be fair with their appointment. Here Garland picked a pit bull to investigate Trump (Smith), and a poodle to investigate Biden (Robert Hur). If both Biden and Trump had classified document issues, why not also appoint Smith to investigate Biden?]
In May 2024, the Prosecutor of the International Criminal Court applied for arrest warrants. You would not be surprised to find that some of those warrants were for Yahya Sinwar, the leader of Gaza, and other high-ranking Hamas officials. If such a warrant is issued, signatories to the Rome Statute would have an obligation to arrest Sinwar, should he appear in their jurisdiction. Suffice to say that these individuals will not be bothered by such warrants. There is also a pending arrest warrant for Russian President Putin. He is likewise unconcerned, as he jetsets around the globe to China, North Korea, and other nations.
But in the same breath as warrants were issued for the perpetrators of the October 7 slaughters, the Prosecutor also applied for warrants for Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant. These politicians, who are fighting a difficult war, are quite unpopular in certain segments of society (I will write another post on Israeli politics later). But to indict them alongside vicious terrorists undermines any possible credibility of the ICC. No warrant was issued in the immediate aftermath of October 7, but the warrants against the Israeli officials came quickly. One lawyer remarked that the ICC typically prosecutes African tin horn dictators (as Justice Scalia called them), so this may be used to show that the court is applying the law to all people, equally. If Jack Smith's tenure concludes on January 20, 2025, he can go back to the Hague and prosecute another conservative head of state.
Now, onto the other court, the International Court of Justice. The ICJ hears suits brought by one nation state against another nation state. Israel is currently facing two prominent cases. First, South Africa has alleged that Israel has engaged in genocide and is imposing starvation on the people in Gaza. Second, there is a longstanding matter concerning the status of the territory on the west bank of the Jordan river (that is the river those students keep chanting about).
Let's start with the parties. The President of the ICJ is from Lebanon, a country that refuses to recognize the existence of Israel. What interest does South Africa have in the conflict between Israel? My understanding is that when genocide and starvation are alleged, any country in the world can bring the suit. But why South Africa in particular? Israeli lawyers have alleged that Iran gave a substantial sum of money to the cash-strapped African National Congress to support the case. Relatedly, the campus protests are backed by Iran. Those encampment tents don't pay for themselves.
Oh, and "The State of Palestine" has moved to intervene in the case. I use scare quotes here quite deliberately, since this court has not yet recognized the state of Palestine. This intervention is a cynical attempt to get the court to recognize a Palestinian state, which would then provide a host of other protections under International law. This is the very definition of asymmetric warfare. "The State of Palestine" is not a member state of these international tribunals, so has none of the responsibilities, but still seeks to exploit these institution on offense against its enemy, Israel. The Palestinians want to have their cake and eat it too.
To any fair-minded lawyer, this regime makes no sense. But in the Hague, Netanyahu is a war criminal but Hamas is just another litigant. Only in a progressive fantasy court can Iran bribe South Africa to prosecute Israel for starving the Palestinian people during the middle of a war, even as prodigious efforts are being made to provide humanitarian aid, and warn civilians about strikes. There is a parallel action by Nicaragua, a rogue state, against Germany and other western nations, to prevent them from providing support to the "genocidal" Israel. Who doesn't want to join this party?
South Africa has sought what are known as "provisional measures," which roughly translates to an preliminary injunction. If you think the Supreme Court shadow docket is scary, wait till you see the emanations and penumbras from the Hague! South Africa asked the ICJ to grant what would have been, in effect, an ex parte global TRO, preventing Israel from prosecuting the war in the Gaza Strip. And South Africa initially wanted that relief without even the benefit of a hearing. And what is the standard for relief? For starters, there is no balancing of the equities. The court only considers the harm to the aggrieved party--and to be clear, South Africa is bringing the claim on behalf of the Palestinian people. Talk about third party standing!
Moreover, there is no need to show there is a likelihood of success on the merits. The application only needs to assert that the claim is "plausible." Yes, the standard for a global injunction (literally) against a nation at war is Iqbal. And these judgments are based on testimony from public accounts, buttressed by reports from biased NGOs. (I'll talk about NGOs in another post.) In America, plausibility gets you discovery. At the Hague, plausibility gets you a ceasefire. When an international lawyer explained this standard, I nearly jumped out of my chair. He replied, somewhat bemused, that American lawyers often argue that plausibility is an insufficient standard for granting such sweeping relief, but the international courts disagreed. I've always known that international lawyers scoff at American law, but I never quite understood why. Now I get it. The game is rigged.
It gets so, so much worse. South Africa knows full well it will never actually win a judgment on starvation. That ruling, if it ever comes, could take two years or more. And the facts on the ground are constantly shifting and changing. The whole game is the "provisional measures." This is why likelihood of success on the merits is such an important element for preliminary relief. As even Justice Barrett will tell you, if a party is not likely to win at the end of the day, there are very strong reasons to not grant any interim relief. But South Africa can use lawfare try to stop a military action even if it cannot prove a case of genocide or starvation.
So far, the ICJ has rejected four separate requests for provisional measures that would have required Israel to halt the war. Instead, the ICJ, in increasingly harsher terms, has ordered Israel to provide more humanitarian aid. But at some point the ICJ may attempt to impose limits on hostilities. Now, you may say that Israel should tell the ICJ to pound sand; the rulings of that "court" are no more binding than this blog post is. But, the beloved international community can hold up a ruling against Israel as a reason to deny aid and funding. Israel cannot exist as an international pariah. In this fashion, the ICJ functions as an arbiter of international opinion. And did I mention a Lebanese judge is the president of the court? What poses a greater risk to Israel? Missiles filed from Lebanon, or a ruling from a Lebanese judge? At least the Iron Dome can stop the former. But no amount of lawfare can stop the latter.
If the ICJ existed during World War II, could Japan have sought a "provisional measure" to stop the nuclear bomb from being dropped on Hiroshima and Nagasaki? Could Nazi Germany have applied for an arrest warrant of General Eisenhower for bombing Dresden? Would the invasion of Normandy have been halted for causing beach erosion? If these courts would not have permitted these acts which saved democracy around the world, what the hell good are they?
Let's go back to the case concerning the West Bank. As soon as this Friday, the ICJ will likely rule that Israel is illegally "occupying" the land known as Judea and Samaria. This ruling may also provide some recognition for the Palestinian Authority in the West Bank. A lawyer told me this ruling would "hurt" far more than the South Africa, because it would not be some sort of interim measure. Rather, the "court" would purport to resolve a territorial dispute that has raged for decades. My response here, is much the same with my response to Trump v. United States. Political disputes should be resolved by political means. Judges, lawyers, and academics may fancy themselves as capable of statesmanship, but they're not. Law only goes so far.
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I'm sure there are errors in this post. Readers, I'm sure, will graciously email me corrections. But mistakes around the margin are secondary. The thrust of this post should be profoundly disturbing. Israel can't win in a rigged game. And don't think for a second that these regimes are only designed to harm Israel. America is next. Any precedents established against Israel will be used to punish some future American military campaign. As the saying goes, first they came for the Jews, and others were silent. Nations that cannot possibly defeat America on the battlefield are turning to Lawfare in international tribunals. Meanwhile, no cases are brought against actual genocidal actors in China, Iran, and other countries.
What is perhaps most depressing is that virtually all of the Israeli lawyers I spoke with have unending fidelity to this process that everyone know is stacked against Israel. In a sense, lawyers steeped in this tradition have to believe in it. Otherwise, their life's work would be for naught. I, as an outsider, can try to look objectively at this lunacy. But at each presentation, I threw my hands up in the air with a look of frustration. I kept repeating a refrain: what is the point?
