When Laws Aren’t Laws

The problem with this, as with much of “international law”, is that even if you buy into it a law without an enforcement mechanism isn’t a law.

All parties to both these controversies proceed from a common premise: that Israel has the right to use force in order to prevent Gazans from breaching the fence. The dispute comes down to: how much? Critics who allege “disproportionate” or “excessive” force tacitly legitimize Israel’s use of “proportionate” or “moderate” force, while those who insist upon the applicability of human rights law acknowledge that Israel’s resort to force is legitimate if demonstrators pose an “imminent threat” to a sniper’s life.

This presumption holds even at the most critical pole of the debate on Gaza. The Israeli human rights group B’Tselem condemned as “illegal” Israel’s resort to lethal force against unarmed persons “approaching the fence, damaging it, or attempting to cross it.” But it conceded that “[o]bviously, the military is allowed to prevent such actions, and even to detain individuals attempting to carry them out.” A senior Human Rights Watch official argued that Israel’s use of live ammunition in Gaza was “unlawful.” But she suggested that “nonlethal means, such as tear gas, skunk water, and rubber-coated steel pellets” would have passed legal muster. The International Committee of the Red Cross cautioned Israel that “lethal force only be used as a last resort and when strictly unavoidable in order to protect life.” Even the major Palestinian human rights organizations characterized Israel’s use of force as “excessive,” “indiscriminate,” and “disproportionate” rather than inherently illegal.

But the fact is, Israel cannot claim a right to use any force in Gaza — whether moderate or excessive, proportionate or disproportionate; whether protesters are unarmed or armed, don’t or do pose an imminent threat to life. If it appears otherwise, that’s because the current debate ignores critical caveats in international law and abstracts from the specific situation in Gaza.

And further, a law without an enforcement mechanism that requires a more powerful force to lay down its arms against a less powerful one is even less of a law.

{via Murali}

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11 thoughts on “When Laws Aren’t Laws

  1. is that even if you buy into it a law without an enforcement mechanism isn’t a law.

    This is controversial. According to HLA Hart* a rule is part of a legal system so long as people generally comply with the duty imposing rules and officials accept the rule of recognition. In spite of some notable defectors, most states do by and large comply with international law and the people over at the Hague quite naturally accept the rule of recognition. International law is law even if the efficacy of the system is somewhat more questionable.

    *For reasons that I have previously explained, we should prefer Hart’s account to Austin’s simpler command theory of law.

    https://ordinary-times.com/2012/04/20/jurisprudence-blogging-2-hart/

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  2. The Jacobin crowd doesn’t believe that Israel has a right to use force against Hamas because they do not believe that Israel should exist at all. Norman Finkelstein is on the record as saying that Jews created a Holocaust industry in order to get us a state which we do not deserve. Naturally, there is no threat that Israelis face that they will say Israel had the right to exercise force against because they want Israel to disappear in its’ entirety. These are the types of leftists that believe Jewish immigration to Israel/Palestine between 1880 and 1948 was an act of settler colonialism like the Pied Noirs of Algeria rather than a persecuted group trying to liberate themselves from their persecutors.

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    • …Jewish immigration to Israel/Palestine between 1880 and 1948 was an act of settler colonialism like the Pied Noirs of Algeria rather than a persecuted group trying to liberate themselves from their persecutors.

      Apparently history stopped in 1948. If memory serves, before the war Israel had hundreds of thousands but afterwards they swelled to millions, i.e. the bulk of the immigration was afterwards with Jews fleeing Arabic countries.

      Of course we’ve had a lot of Christians do that too over the decades.

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  3. I’m not commenting on the specific issue of Israel and Gaza, but I do agree (mostly) with your implied view that it’s hard for a law to be a law if there’s no way to enforce it. It’s kind of a grudge I carry. I took an undergrad class in “international relations” and the professor claimed that (I paraphrase) “it’s a fallacy to say that there’s no such thing as international law just because there’s no mechanism to enforce it.” It really bothered me at the time. It may indeed be wrong to say that, but I have a hard time believing it’s a “fallacy.”

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  4. The interesting thing about the farther left and the farther right is that they both think the United Nations and other similar law bodies have more power and enforcement mechanisms than they do in reality.

    The truth is that most nations pay attention to international law and the United Nations when it suits their needs and ignore it when it does not.

    A lot of my friends on the left post clickbait things on how the United States under Trump did something that raised the ire of the United Nations or broke some international law. I deplore the actions that Trump takes as much as they do but no one but the choir is going to be convinced by that kind of clickbait. It is also meaningless because no enforcement mechanism.

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    • It is also meaningless because no enforcement mechanism.

      The “enforcement mechanism” is “war”, but for a lot of this we lack anything effective short of that and wars are expensive. We also need an international community that’s a lot more grown up.

      There seems to be no way to remove national politics, i.e. “I want to do this because it’s best for my narrow national interests” from international politics. I also question whether various warlords-with-a-country should be taken just as seriously as France, England, and Germany.

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  5. Palestinians need better press.

    “Keeping out Palestinians means keeping out the children who will grow up to be the doctors who will care for your grandchildren, keeping out the researchers who will discover and invent things to improve their lives, keeping out the artists who will inspire them.”

    “Israeli soldiers killed the unarmed potential parent of a medical researcher today at a checkpoint, when she tried to ram her car through a barricade.”

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  6. Israel Has No Right of Self-Defense Against Gaza

    … I’m not sure that these guys get how self-defense works.

    There’s basically two ways to win. You can win an outright victory (i.e. defeat your opponent). Or you can win some kind of moral victory (i.e. lose, but do it in such a way that your opponent’s actions look really bad). You can even turn a moral victory into an outright victory (see Ghandi or the U.S. civil rights movement). What you can’t do is fall to the mat, get back up with your hands in position, and then complain when your opponent punches you in the face again. Pro-Palestinian partisans think that they’re Rocky Balboa when they’re really Monty Python’s Black Knight.

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