Just War Theory or Justify War Theory? Why Israel (or Any State) Should Not be the Authority on International Law

There is a bomb somewhere in the city center. You do not know where, but you have the person who planted the bomb in your custody. He refuses to reveal where the bomb is located. The bomb is going to explode in one hour, threatening to kill innocent civilians. Do you torture him to get the information?

“Ticking time bomb” hypotheticals like this one illustrate how sometimes something which we may denounce as otherwise unacceptable and unethical (torture) might seem necessary to prevent a greater evil (the death of innocent civilians). In international law, the prohibition on torture is a peremptory norm from which no derogation is permitted. Why? Because as an international community, we recognize that some things – such as torture, genocide, slavery – are so perverse that we cannot engage in their practice without eroding the foundation of a society governed by the rule of law. Nothing can justify their use. Not even terrorism.

Terrorism is a threat that both the United States and Israel know well. Earlier this week, Captain Ben Wahlhaus, a member of the Israel Defense Forces’ international law department, spoke at Harvard Law School about the struggle Israel faces in fighting terror organizations within the laws of armed conflict. Captain Wahlhaus emphasized that Israel is a democracy that adheres to the rule of law in all that it does. Military legal advisers like Captain Wahlhaus assert that the advice they give is lawful and therefore that state action that follows that advice is legitimate. But we as law students need to go beyond accepting prima facie legitimacy and assess the legal and policy implications of questions avoided or left unanswered.

We could ask, as a matter of law, does Israel’s relationship with Gaza and the West Bank render it a belligerent occupier? If so, what is the scope of an occupied population’s right to lawfully resist? Has the IDF targeted civilians and civilian infrastructure in violation of the principle of distinction? Do its warnings of impending attack satisfy its obligation to take all feasible precautions in circumstances where any fleeing civilians are restricted by the blockade of the Gaza Strip? Does the practice of targeted killings offend due process norms? More broadly, as a matter of policy, how can we ensure adherence to international law and accountability for state action in the modern world? The answers are far from settled. But rather than meaningfully grapple with these difficult questions, we are invited to trust a state view that assures us that if we knew the facts on the ground, we would understand.

A challenge often claimed is that non-state actors do not see themselves as bound by international law, and purposefully and systematically violate the law for strategic gain. Undoubtedly, the framework within which states can lawfully fight against non-state actors is complex. But this should not permit the standards of democracy to dip. The fog of war must not become a fog of law. As former President of the Israeli Supreme Court Aharon Barak said in Public Committee against Torture in Israel v. Government of Israel, “Preserving the rule of law and recognition of individual liberties constitute an important component of [a democracy’s] understanding of security.” Adhering to the rule of law ensures respect for democratic values and safeguards our freedom from tyranny – the very tyranny against which we claim to fight.

As a student educated in law in another democratic country, sometimes I am baffled by the views expressed by my fellow students in international law classes. Students have suggested, hypothetically, that the legality of force is inconsequential because “no one is going to put the U.S. in jail,” killing of civilians in retaliation is acceptable because, by way of analogy, “If you kill one of my family members, I’ll kill your whole family, I don’t even care,” and that while civilian casualties are unfortunate, it is the bad luck of the civilians for being born in the enemy state. Even if these remarks are made in jest, they have broader implications if they are seen as the prevailing views. These views are entirely at odds with internationally accepted views of accountability, the illegitimacy of reprisals, and proportionality. Indeed, there seems to be little opportunity within the broader Harvard Law School environment to explore international perspectives on international law. The international community should be the authority on what is lawful, not any one state.

Given that our fellow students will likely go on to hold influential roles in the military, the legislature, and in shaping state policy, it is important we engage meaningfully with international law now. Otherwise, in our future careers we risk creating an environment in which the state’s interpretation becomes authority and independent legal minds are asked to do nothing but accept the status quo. This is not a hypothetical concern: before coming to Harvard Law School, Professor Goldsmith resigned from the Department of Justice after becoming “fed up and exhausted” with the whole process of fighting to change the now-infamous Torture Memos that he considered to be legally flawed. Professor Goldsmith was, of course, vindicated by history, but imagine what might have been avoided had his views been taken seriously at the time?

So how, then, do we meaningfully engage? Ask questions. Challenge the premise. Distinguish between propaganda and law. Demand accountability. Actively seek out different opinions. Yes, this will be challenging, but it is absolutely necessary. We must resist the temptation to label our fellow students as pro-or-anti Israel/Palestine and justify dismissing their views because we are not on their “side.” We need to interrupt this pro-or-anti narrative if we are ever to realize the underlying goal of frameworks like international humanitarian law: respect for humanity. If we must be pro-anything, as Harvard Law students, we should be pro-rule of law, applying equal scrutiny to the acts and omissions of both our friends and enemies.

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