I previously posted about the latest rash of scandalous photos coming out of Afghanistan showing U.S. military atrocities under Obama’s command, and wondering if the media would pick up on it the way they did when it was Bush’s army… Well, here’s a twist I wasn’t expecting: yes, one of the U.S. media, Rolling Stone, [...]
Jeffrey Goldberg, a correspondent for the Atlantic, cast a spotlight on yet another disgustingly overt example of pure bias in the mainstream media, particularly at the anti-Semitic Reuters newswire. He points to a Reuters news item which contains the following despicable sentences: Police said it was a “terrorist attack” — Israel’s term for a Palestinian [...]
In the [sparse] reporting of the Palestinians’ massacre of the Fogel family, several newspapers stand out with their distorted sense of “balance”, i.e., where they feel overwhelmingly uncomfortable describing the barbarity of the Palestinians without at least taking a swipe or two at the Israelis, no matter how patently irrelevant or disgustingly disrespectful it comes [...]
Aggressor’s Rights
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Paul H. Robinson, a professor of law at the University of Pennsylvania, and the co-author of “Law Without Justice: Why Criminal Law Does Not Give People What They Deserve” (Oxford, 2006), has written an excellent piece in the Wall Street Journal today describing the huge flaw in the international legal system in which victims of aggression find their hands tied when it comes to their ability to defend themselves and head off attacks, while the aggressors have the upper hand.
He writes:
The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.
Article 51 of the U.N. Charter forbids all use of force except that for “self-defense if an armed attack occurs.” Thus the United Kingdom’s 1946 removal of sea mines that struck ships in the Strait of Corfu was held to be an illegal use of force by the International Court of Justice, even though Albania had refused to remove its mines from this much used international waterway. Israel’s raid on Uganda’s Entebbe Airport in 1976—to rescue the victims of an airplane hijacking by Palestinian terrorists—was also illegal under Article 51.
Domestic criminal law restricts the use of defensive force in large part because the law prefers that police be called, when possible, to do the defending. Force is authorized primarily to keep defenders safe until law enforcement officers arrive. Since there are no international police to call, the rules of international law should allow broader use of force by victims of aggression. But the rules are actually narrower.
Imagine that a local drug gang plans to rob your store and kill your security guards. There are no police, so the gang openly prepares its attack in the parking lot across the street, waiting only for the cover of darkness to increase its tactical advantage. If its intentions are clear, must you wait until the time the gang picks as being most advantageous to it?
American criminal law does not require that you wait. It allows force if it is “immediately necessary” (as stated in the American Law Institute’s Model Penal Code, on which all states model their own codes), even if the attack is not yet imminent. Yet international law does require that you wait. Thus, in the 1967 Six Day War, Israel’s use of force against Egypt, Syria and Jordan—neighbors that were preparing an attack to destroy it—was illegal under the U.N. Charter’s Article 51, which forbids any use of force until the attack actually “occurs.”
Now imagine that your next-door neighbor allows his house to be used by thugs who regularly attack your family. In the absence of a police force able or willing to intervene, it would be quite odd to forbid you to use force against the thugs in their sanctuary or against the sanctuary-giving neighbor.
Yet that is what international law does. From 1979-1981 the Sandinista government of Nicaragua unlawfully supplied arms and safe haven to insurgents seeking to overthrow the government of El Salvador. Yet El Salvador had no right under international law to use any force to end Nicaragua’s violations of its sovereignty. The U.S. removal of the Taliban from Afghanistan in 2001 was similarly illegal under the U.N. Charter (although it earned broad international support).
An aggressor pressing a series of attacks is protected by international law in between attacks, and it can take comfort that the law allows force only against its raiders, not their support elements.
…the U.N. Charter’s severe restrictions on use of force might be understandable—if only one could stop all use of force by creating a rule against it. Since that’s not possible, the U.N. rule is dangerously naive. By creating what amount to “aggressors’ rights,” the restrictions on self-defense undermine justice and promote unlawful aggression. This erodes the moral authority of international law and makes less likely a future in which nations will turn to it, rather than to force.