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.
engineer says:
Farrell is right that kangaroo sanctions such as the Goldstone report can influence the actions of states.
States know that no matter how much it attempts to limit civilian casualties, any high profile military action that Israel takes will be condemned as a war crime.
One day this might cause an IDF commander to decide that it’s not worth endangering himself or his troops to follow the Geneva conventions since he will be condemned no matter what he does.
And we know full well that such activities by the UN embolden Hamas, Hezbollah and their Iranian/Syrian sponsors because not only do their actions terrorize Israelis but any Israeli response wins international approbrium.
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October 27, 2009, 10:19 amwm13 says:
I don’t understand Farrell’s argument. Why is it “better than nothing” if Israel, a no doubt imperfect but basically democratic and law-abiding state, is condemned, while China (say) is not? The undermining of small democratic states in favor of large repressive ones seems like a net plus only if you visualize yourself as part of the ruling elite of one of the latter states.
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October 27, 2009, 10:29 amAnderson says:
(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.)
Wait. They abstained from adopting a *report* because they were not happy about some wording in the adoption resolution? I.e., about some issue that had zero to do with the report itself?
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October 27, 2009, 11:24 amEngineer says:
They abstained from adopting a *report* because they were not happy about some wording in the adoption resolution? I.e., about some issue that had zero to do with the report itself?
Convenient isn’t it? Enables them to avoid endorsing a severely flawed but popular report on procedural grounds
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October 27, 2009, 12:05 pmmarc says:
I’ve never understood how “international law” can have any legitimacy as long as it reflects the consent of the governments and not the consent of the governed. Treaties are one thing, unelected governments declaring that elected governments are acting ‘illegally’ is another. Even elected governments telling one another how to behave seems suspect to me.
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October 27, 2009, 12:15 pmArthurKirkland says:
Was that the day Israel used cluster bombs?
Gargantuan volumes of American assistance — from dollars to weapons technology (gifted, sold or stolen), and from guarantees to blood — probably should come with strings attached.
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October 27, 2009, 12:27 pmegd says:
Does the same standard apply to those who are arming the Palestinian terrorists? And by terrorists I mean those who kill innocent civilians, rather than those who attack the (arguably) legitimate targets of the IDF.
Or is this another “America shouldn’t do X because I said so” argument?
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October 27, 2009, 12:41 pmCrunchy Frog says:
I find it hard to believe that Bibi Netanyahu spends anything more than a millisecond being “worried and upset” about garden-variety UN douchebaggery.
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October 27, 2009, 1:02 pmAssistant Village Idiot says:
marc hits on an underappreciated piece of the human rights discussions in an international context. Reverting to the shorthand of thinking “The Nigerians voted for...The Russians voted for...The Sudanese voted for...” is fairly automatic for most readers. One has to make an effort to remember that those nations have not voted for or against something, the governments of those countries, some risibly unrepresentative of their people, have voted. This warps our impression of what “international opinion” actually is. In the many situations where citizens receive only government-approved information, we might well question whether a human rights opinion from that government has any real meaning at all.
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October 27, 2009, 1:20 pmAbdul Abulbul Amir says:
About the only this “report” does is to confirm that the UN is a joke.
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October 27, 2009, 1:52 pmSigivald says:
“Cluster bombs” in themselves do not violate the Geneva Conventions or the traditional laws of war (which is why crusaders are trying, without significant success, to “ban” their use in a separate treaty).
Using them in Lebanon against militarized targets likewise is not a violation of the Conventions or the laws of war.
Given that Hezbollah militarized entire neighborhoods and “civilian areas” precisely to cause the sort of faux-war-crime you’re suggesting here, I’m not seeing the problem with Israel’s actions in response.
See, when you use civilians as a defense (or as an offense, by attacking knowing that the counterattack will harm them and aid your cause in public relations) you break the laws of war and violate the Conventions, thus stripping yourself of their protection — and unlike the professional worrying class of NGO employees I don’t see using BLU-63s on a militarized target as automatically criminal. (Despite what Wikipedia’s quotes suggest, an u-ndetonated BLU-63 munition is not “basically a land mine”, since it’s spin-armed. Merely touching it or stepping on it is staggeringly unlikely to set it off.)
The idea here is that if doing so did not strip you of their protection and open you to counterattack without regard for their niceties, nobody would ever obey the Conventions because it would be done entirely asymmetrically and nobody would be willing to pay the high price of “playing nice” for nothing in return.
Thus Hezbollah stations combatants in civilian buildings or areas, and even attacks from them... and you condemn Israel for war crimes and “breaking the Geneva Conventions” when fighting back, because civilians are in the area?
Congratulations — you have successfully done your part to undermine the Conventions and the laws of war by selectively ignoring their violation, such that any entity that attempted to obey them to your satisfaction would find itself hamstrung by an opponent you happily ignore violating them ... and at a far more fundamental level, using civilians willfully as shields or propaganda victims.
If you ever wonder why shrill complaints about “war crimes” are laughed at in such contexts, well... now you know.
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October 27, 2009, 2:00 pmJoe says:
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.
I won’t pre-judge it but (have you read Andy Sullivan?) the people who wrote it can’t really be trusted so (implied) why should I bother? He then puts forth the HRC just whip Israel sentiment of some around here, though darn if it repeatedly has been shown to be false.
Oh, it also puts forth “bland and uninformative periodic reviews of the human rights practices” ... bland and uninformative to whom?
Why should I take this guy seriously?
BTW ...
how does being upset that a resolution, which often is a statement of purpose or something that spells out the function of something, on wrongdoing in Gaza that does not reference the Hamas become “some issue that had zero to do with the report itself”
Zero? It has just a tad to do with it, doesn’t it? This very post underlines how worries about bias leads to people not taking certain things seriously.
International law needs institutions if it’s to get beyond its primitive state,
International law has been around for centuries as I recall. It in fact goes back to ancient times in some respects. How “primitive” is it really?
Again, why should I take this guy seriously?
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October 27, 2009, 2:25 pmLarryA says:
For the folks in the neighborhoods Hezbollah has occupied international law is about as primitive as medieval law, where the folks who were armed could tell you to do whatever they wanted, and you had the choice to obey or die.
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October 27, 2009, 2:59 pmDilan Esper says:
I think conservatives don’t understand that it is possible for a UN or NGO report to be (a) criticized by conservatives and (b) influential. Matt Yglesias has a nice example today on his blog– Helsinki Watch, which did a tremendous amount of good while all the while being criticized as too soft by the American right.
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October 27, 2009, 3:29 pmJoe says:
For the folks in the neighborhoods Hezbollah has occupied international law is about as primitive as medieval law, where the folks who were armed could tell you to do whatever they wanted, and you had the choice to obey or die.
I’m not sure what ‘medieval law’ we are talking here. Feudal law, for instance, was a complex institution of interlocking obligation. Self interest alone required lords not to be total tyrants to their vassals and serfs. The church also put forth certain limits. Of course, like gang warfare on the streets these days, there were limits to control. But, that would not be a matter of ‘law’ as such.
Anyway, pointing to some forsaken place is not the best way to determine the state of ‘law’ in general. If so, we can deem domestic law in this country “primitive,” particularly in the not so distant past.
If Posner consistently wants to use “primitive” that would be a different matter.
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October 27, 2009, 6:49 pmArthurKirkland says:
I sense that no one is right about the Middle East. The area has been a clustermuck for a long time. Jamming Israel into the middle of it was a mistake to which much of the modern problem — a noxious mix of superstition, violence, arrogance, vengeance, dogma, a crossfire of historical wrongs, international meddling, armaments and distrust — can be traced. All sides have their legitimate points, their just grievances, their mistakes, their misconduct, their advantages and disadvantages. There are few, if any, white hats to be found in that region.
Unless and until someone identifies a way to make that region stable and anything other than a clustermuck, the less the United States exposes itself to that toxicity, the better.
I continue to believe the most sensible, cost-effective, humane and moral long-term approach might be to offer the Israelis a way out of there. It certainly seems better than the current trajectory, which seems unlikely to be sustainable in the long term.
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October 27, 2009, 8:20 pmcubanbob says:
Jamming Israel is not the problem. Arabs occupying land that isn’t theirs is the problem.
When are the Arabs getting out of the Kurdish lands, the Coptic lands and so many other lands they have conquered?
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October 27, 2009, 10:18 pmThe Volokh Conspiracy » Blog Archive » Does the UN Human Rights Council cause states to treat their citizens better than they otherwise would? says:
[...] our exchange, Henry Farrell says that the answer is likely yes, noting that “there is good evidence that the [...]
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[...] I sak ryker de ihop över FN:s råd för mänskliga rättigheter, efterträdaren till den ökända människorättskommissionen. Rådet domineras av illiberala stater och förutom att fördöma Israel sysslar den framför allt med att urvattna idén om internationella mänskliga rättigheter. Så varför ska liberala västerländska stater böja sig för MR-rådets illiberala majoritet? Det ligger inte i deras intresse att vara ”the only group of states that will be condemned for [human rights] violations, giving a free pass to a larger group of states that, as it turns out, act much worse”, menar Posner. [...]