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War (Rules). What's It Good For?


It is virtually impossible to listen to or read any media without seeing accusations leveled at Israel of “war crimes” and “violations of international law.”  As I am sure many of you agree, it is highly-troubling, to say the least, to regularly be confronted with these allegations about Israel’s conduct.  Consequently, I have spent a good deal of time ruminating on this disturbing subject. 


For starters, and at the risk of getting too legalistic about it, there is a threshold question about whether “international law” is really a thing.  That may strike most as surprising, but eons ago when I was in law school there certainly was a view that, while perhaps to some degree a technical point, there really is no such animal as international law.  How could this be?, you might ask.  The reason has to do with the nature of law generally.  When one is a citizen or resident of the United States (or even just passing through), for example, she agrees implicitly with relinquishing some degree of autonomy to the state on the basis that all others must do the same and that the state will use that authority granted to it consistent with its laws.  As a result, the state ultimately has a degree of power – and enforcement – over its population. 


This ceding of authority is not generally present in the dynamic between nations.  The United States does not essentially cede any of its sovereignty to any other body.  Although some might think about the United Nations as a counterpoint to this statement, in reality the General Assembly of the UN has no enforcement power whatsoever.  (The Security Council is a bit of a different animal, but of course the US has a veto over any action proposed by the Council, which all supporters of Israel are unfortunately quite familiar with.)  This unwillingness to relinquish sovereignty is one of the principal reasons that the United States (and Israel) do not belong to the International Criminal Court. 


That primer aside, if one were to assume that international law is a very real and enforceable thing, I have become increasingly disturbed and disillusioned by its application, particularly when it comes to the so-called rules of war.  After World War II, which was of course a watershed event for humanity, well-meaning individuals and nations produced the updated Geneva Conventions to establish international legal standards for humanitarian conduct in war.  This seems like a completely uncontroversial and irrefutable concept.  But I sadly fear that it is anything but that. 


Although I would not, nor would most westerners, ever advocate for unnecessary or readily avoidable deaths or suffering in war, the problem seems to be a very basic but bizarrely universally overlooked one:  Specifically, in virtually every armed conflict, at most one side of the conflict is seeking to adhere to the rules of war while the other side incessantly flouts those rules.  Consequently, a democratic state that is forced into armed conflict ise forced to try and fight with effectively one arm tied behind its back while its enemy faces no similar constraints.  That cannot be, nor should it be, the result.  In the current situation with Israel – and in virtually every armed conflict to which it has been a part – the other parties thereto are the aggressors.  Yet each time Israel is the one who, in self-defense, is constrained in its ability to justifiably retaliate and seek to ensure that such “unlawful” aggressions do not occur again.  But, it is only Israel that we hear being held to account for alleged war crimes; does anyone ever even mention the war crimes committed by Hamas?  Is there just an understanding that because it is a terrorist organization that committing atrocities is part of its DNA and therefore somehow not necessary to mention?  To state it a bit differently, how does it make any sense that one party is attacked in a manner that consists of innumerable war crimes while the party that was attacked is the only one held accountable for its wartime actions? 


Israel can take some solace – a very small amount, admittedly – in the knowledge that it is not the only nation that has been held to what can only be classified as an illogical double-standard.  The United States as well has been accused of similar actions, but of course no one can ultimately (and thankfully) truly stand up to her.  Israel has no such standing, unfortunately.  But regardless of the nation involved, the point remains essentially the same:  It is just not realistic – not to mention not equitable – to hold two warring parties to effectively different standards. 


A substantial part of the problem is that two true democracies almost never go to war with one another.  This is essential to keep in mind because a true democracy complies with its own rule of law and recognizes the supremacy of law.  Dictatorships (including terrorist organizations) obviously do not trouble themselves with such niceties.  Consequently, there is essentially no one to be held accountable for their atrocities other than the dictator at the top who almost always escapes either with no direct penalty or with the ultimate one but brought about by means other than any type of actual criminal trial.  One of the few examples to the contrary involves the war in the former Yugoslavia.  Yet, how many conflagrations have there been where there was no such tribunal to adjudicate?  Too many to count and certainly to list. 


Despite the best of intentions of the drafters of the rules of war, I often think that they were not particularly good students of history, even very recent history.  I state this as I wonder what would have been the effect on the Allies, and the United States in particular, if these rules were in place during The Big One.  Although one can question the efficacy of carpet bombing (something that historical revisionists love to contemplate), for example, there is no real question that dropping the atomic bombs on Japan brought that war to an end.  Those who argue that the bombs were unnecessary seem to, like the drafters of the Geneva Convention, not be particularly good students of history.  Recall that even after dropping the initial atomic bomb on Hiroshima, the Japanese war cabinet of dictators was not interested in surrendering.  To the contrary, the Japanese continued to prepare by arming children, seniors and women for the anticipated land invasion by (mostly) American forces.  And while one might be able to argue that other targets could have been selected by the Americans for demonstrating the power of the atom bomb, the reality is that best estimates of the numbers of American lives that would have been lost in an invasion of the home islands of Japan were staggering.  And, for those who stubbornly are still not convinced, the numbers of Japanese that would have died would have greatly exceeded that which were killed in Hiroshima and Nagasaki combined.  Many of us sitting here today would likely not have ever existed had our fathers and grandfathers been forced to try and capture the Japanese islands by the means used to free, for example, Okinawa of the Japanese war machine’s depraved rule. 


In addition to the inequitable nature of the application of these war rules, I also question their necessity.  Democratic nations, which as argued above are likely to be the only ones to attempt to adhere to such rules, have not been shown to systematically ever engage in wanton killing or punishment.  To the contrary, democratic societies seek to avoid war at virtually all costs because they universally value human life.  (Note that whenever there is a question of US military involvement, the issue of sending in American ground forces is almost always bypassed for using air power so as to minimize the potential loss of American lives.  Yet when Israel does the same, it is somehow an aberration.)  Since those who do not believe in the rule of law will not heed its existence, the only remaining seeming utility of rules of war would be to criminally prosecute those who commit atrocities after the conflict has been won.  To do so, however, we do not need a separate set of international “laws” to hold anyone accountable.  Democratic states have enough laws on the books to adequately prosecute any who would commit such acts against a state or its people.  The United States has prosecuted those involved in the 9/11 attacks under its own laws, for example, not under any “international laws.” 


To be sure, I loathe to take the position that generally accepted concepts that are adopted to protect life and generally advance humanity should be disregarded.  Yet I cannot in good conscience ignore how grotesquely they are readily used not in search of justice but to merely single out the actions of only those who seek to adhere to them in the first place. 

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