Reply to Henry Farrell, Part II

I mentioned before Henry’s defense of the laws of war.  Here is the relevant passage.

There is likely a very plausible case to be made that these norms ought to be much tougher and more restrictive than they are – even if they are not a product of power politics they are limited by these politics. Nonetheless, even if they are weaker than they should be, they are still a lot better than nothing. And here, the Goldstone report was exactly right – the ‘but he did it first’ excuse is not, and cannot be a justification for committing war crimes. … Both Gideon and Eric would point to the undoubted fact that the leading politicians of great powers (or their important clients) are highly unlikely to find themselves in the dock for war crimes. But direct punitive sanctioning is not the only effect of law. It can influence the perceived legitimacy of a particular state, its actions and its leadership. It is quite clear that Israel has taken a substantial reputational hit from the Goldstone report, even if it will never be condemned by the UN Security Council, and that Israel’s leaders are worried and upset about this.

I expressed some doubts about this logic in my earlier post.  Here I want to point out another problem with this attitude, at least if one takes seriously its logic.  Let us suppose that the Goldstone report was reasonable and fair (I have not read it, so I have no opinion on this issue).  It is worth recalling that it was commissioned by the Human Rights Council, and would not have taken place but for the decision of that institution.  The Human Rights Council is dominated by illiberal states that cannot agree to condemn North  Korea or Iran or Sudan, but can agree to condemn Israel.  When not condemning Israel, it does two things: it tries to advance a conception of human rights that most western states reject; and it issues bland and uninformative periodic reviews of the human rights practices of states.  If you go to their website, and read their reports, you will notice that when votes occur (as they do for controversial issues but not the bland periodic reviews), there is a distinctive pattern, something like this:

The voting was as follows:

In favor: Angola, Argentina, Bahrain, Bangladesh, Bolivia, Brazil, Burkina Faso, Cameroon, Chile, China, Cuba, Djibouti, Egypt, Gabon, Ghana, India, Indonesia, Jordan, Kyrgyzstan, Madagascar, Mauritius, Mexico, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay, Zambia;

Against:  Belgium, Bosnia and Herzegovina, France, Hungary, Italy, Japan, Netherlands, Norway, Republic of Korea, Slovakia, Slovenia, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America.

Hm, what should we make of this?  Here we see the Americans in the same bloc as the virtuous Europeans.  (In the case of the Goldstone report, some European countries abstained rather than voting no because they objected to the Council’s failure to mention Hamas in its resolution adopting the report.)  Henry’s view is that if reports like the Goldstone report are regularly issued, and the state that is the subject of the report takes a “reputational hit,” that can only be a good thing, because at least some states will be more likely to respect human rights and comply with the laws of war.  But can it be seriously entertained that the minority bloc (and it is a bloc) will put up with this state of affairs?  Why should they, exactly?  If they value human rights and the laws of war, they can comply with them.  If they don’t, they would certainly not put themselves in the position of being the only group of states that will be condemned for violations, giving a free pass to a larger group of states that, as it turns out, act much worse.

International law needs institutions if it’s to get beyond its primitive state, but institutions don’t avoid the problem of power politics; they embody them.