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Thursday, January 08, 2009

Israel’s Silent Weapon

Famously, Israel has the best military on the planet, but the IDF’s campaign in Gaza seems destined once again to prove the limits of hard power, especially in shaping failed states like Palestine and Lebanon.   Less famously, the “Jewish” state also has one of the strongest legal cultures on the planet.  Is it imaginable that Israel's security might one day lie as much in that weapon, now silent?  After the next failed ceasefire, might politicians turn to their legal and diplomatic corps to launch vigorous legal and diplomatic campaigns on the global stage?  Or will Israelis repetitively turn to the “hard-men” of the IDF to escape from the awful territorial narrowness that is Israel/Palestine, and find a wider space in which to imagine a future.

Ok, so there is no obvious “court” to which Israel might take the “rocketeers” of Hamas (and of course, in which Hamas might bring a few cross complaints of its own).  Unlike Europe and the Americas, the Middle East has no regional human rights body to which such a campaign could turn.  Nor is the UN an altogether inviting forum.  But humor me (likely the only humor to be currently available on this strand) in daring to imagine what a "law offensive" might look like.  

First consider that Israel has an impressive legal culture.  Its Supreme Court is among the strongest checks on political power to be found outside of the European Union (and given the circumstances might even be considered more assertive).  Israeli society is permeated with legality and even its occupation, as Lisa Hajjar shows in her brilliant book on the topic, is perhaps the most legalistic in history; and one whose legality has deeply impressed itself upon the occupied, who clearly have a legal consciousness in relationship to it.  

Israel’s leaders have regularly found their most important policy decisions subjected to powerful commissions with strong legal authority (indeed Hezbollah leader, Sheik Nasrallah praised the commission which followed the 2006 Lebanon war and questioned why Arab polities do not subject their decisions to the same transparent review).  And wayward politicians (all too common in every nation) have faced relentless prosecutors unafraid to indict the top leaders of the nation for crimes like corruption and sexual harassment (as both the Prime Minister and President recently discovered).  Israeli law schools have become among the most interdisciplinary in the world, and the nation now exports legal academics as readily as security consultants to North America, Europe, and Australia. 

Meanwhile a law offensive against Hamas or Fatah would cast international light on different set of champions for the Palestinian side then those with starring roles in this offensive.   The Palestinians, more on the West Bank than Gaza, have also begun to generate a potent legal culture (much of its schooled in battles fought in the occupation courts) one fully capable of transmitting their national grievances into strong claims in human rights law. 

Next consider whether an innovative media savvy legal and diplomatic campaign would pay dividends even if no adequate jurisdiction existed.  Even its defenders concede this war is largely being fought for psychological reasons, to vent Israeli fear and frustration, and restore a level of deterrent fear in the leadership and population of Gaza.  The psychological cost of course, is very high as well.  Minds that absorb the endless carnage may have an easier time imagining strapping on a suicide bomb kit in six months. 

Could a legal campaign in the UN and perhaps in the European Union compete for the cameras of Al Jazeera and CNN?  That’s not a rhetorical question.  One important audience is Europe.  No continent has been more reshaped by humanitarian legal values (a direct product of the Nazi atrocities that not coincidentally also largely produced both modern Israel and Palestine).   Due to the growing Muslim population of Europe, Israeli military operations broadcast to European publics through international cable, are producing toxic strains of violence that are destabilizing civil society.  There is real danger here (not the least for European Jews).  At the same time, European Muslims increasingly appreciate the role of human rights law and courts in protecting their religious and culture freedom, and in checking the potent Christian xenophobia of which the Jews were for so long the victims.  

How would images of Israeli and Palestinian lawyers decrying, before banks of cameras the other nation's failures to protect human rights play in front of Israeli, Palestinian, and global audiences?  I do not claim to know the answer.  Surely law, even when jurisdictionally "loaded," is small beer compared with the joys of rocketing or shelling your hated enemies.  But it would not surprise me at all if audiences on both sides found it a little bit exhilerating to see their claims articulately framed not in terms of tribal rhetoric, but in the broad terms of human rights. 

In the long run one must hope for the creation of a robust legal context in which the bi-national conflict that has been going on more than sixty years can be, in effect, legalized. My utopian wish would be that the Europeans, recognizing its considerable responsibility for the catastrophe that both peoples have suffered,  provides the wider legal space by inviting both Israel and Palestine to join the European Union (but only if they come in together and at peace).

But in the more realistic short term, one might hope that the global dispersal human rights law as a  governmental discourse is now at a stage where innovative, even if largely performative acts of legal and diplomatic campaigning, could be worth at try as an alternative between doing nothing (which Israeli leaders claim was their pre-war strategy) and launching a bloody military campaign that has low odds of achieving its objectives.

Posted by Jonathan Simon on January 8, 2009 at 07:29 PM | Permalink


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Patrick's comment had strangely been caught in our comments spam filter.

Or perhaps not so strangely...

Posted by: krs | Jan 12, 2009 10:34:29 PM

I expanded on the above over at Ratio Juris, which you can find by clicking on my name.

Posted by: Patrick S. O'Donnell | Jan 11, 2009 11:05:41 PM

For those wondering about the delay in the previous comment's appearance, I just got back from San Diego and AALS after being off the box for the last few days; Patrick's comment had strangely been caught in our comments spam filter, which is odd since his four comments on another post have gone up with no hitch. In any event, I hope no one draws any adverse inferences toward Jonathan or Prawfs from the delay.

Posted by: Administrators | Jan 11, 2009 10:56:43 PM

As a corollary to this discussion that is a bit closer to home, a layman's question for Pr. Markel, his co-bloggers, and guests.

Are some of the more extreme statements/posters utterred/held by the protesters in this video legal?



Posted by: George Garrol | Jan 9, 2009 9:00:32 PM

"Could a legal campaign in the UN..."

You've more or less answered your own question. Even taking the hopelessly optimistic view of the possibilities of "law" that you do, The success of a "legal campaign" has to be dependent on having an arbitrator who is at least persuadable. You might as well suggest that Al Qaeda wage a legal campaign in the U.S., that India wage a legal campaign in Pakistan, or that Jennifer Aniston wage a legal campaign before Judge Angelina Jolie.

Posted by: PRI | Jan 9, 2009 6:58:42 AM

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