There is nothing quite like an assault on international law by one of the most renowned lawyers in the world – the Alan Dershowitz. His public dismissal of international law as “a construct in the mind of a bunch of left wing academics” occurred during a lecture at the Institute of National Security Studies in Israel. This lecture which was taped and uploaded to the Internet has now gone viral -- http://www.youtube.com/watch?v=bbzd0QIKACo. I’ve seen it most frequently touted on social-media sites by self-proclaimed Israel advocates particularly upset about the recent interim deal the United States made with Iran in Geneva.
Though IHLToday.com deals with international humanitarian law (IHL) and advancing its operationalization through discourse between scholars and practitioners, not jus ad bello concerns, I believe we’d be remiss not to address the recent Dershowitz critiques which have broad and analogous relevance for IHL. Furthermore I believe his remarks underscore a great opportunity to advance IHL precisely because jus in bello issues are kept separate by the law itself from modern jus ad bellum quarrels over preemption v. prevention.
This and upcoming IHLToday.com posts in response to Dershowitz’s lecture will be broken into three parts. The first post will identify and develop Dershowitz’s comments and questions that are specifically relevant to IHL. The second post will attempt to address these observations critically. The third post will discuss what strategies and tactics IHL scholars and practitioners can use to respond to these critiques and advance IHL.
PART I – The relevance of Dershowitz’s Attack to IHL
Dershowitz’s scolding of international law (in its entirety) was passionately presented in familiar terms. His line of attack followed this logical progression: international law is only a “construct in the mind of a bunch of left-wing academics”; these academics aren’t rational because they are out of harms way, isolated and misattribute the world as universally good; consequently this has resulted in international law being both irrational, “anachronistic” and “never viable”; therefore states (specifically addressing Israel) do not and should not base their decisions on international law because it may not lead to the outcome best for them.
I want to address Dershowitz’s argument first from a theoretical perspective. During the lecture he said, (in reference to the rationality of Iran) “where one stands is a function of where one sat.” Here Dershowitz is simply suggesting that we are as humans and thus as nations, a product of our environment. In relation to international humanitarian law this stance questions the very notion of universality or what we fondly refer to as “humanity” and its many erudite variations. Can IHL truly register, codify and enforce humanitarian principles when said principles are a matter of perspective and thus not universal?
Dershowitz’s attack on international law is not just theoretical. It is also categorical. Essential to his argument is that international law is being formulated by people unequipped to dutifully address law realistically – i.e. left-wing academics. One could pose that his assumption is that these academics do not understand the operational concerns and challenges of states. To accurately assess this position, we must ask: what actors should be entrusted with the task of universalizing and institutionalizing ethical norms? Furthermore does IHL philosophically or structurally limit the influence of “certain” people? Should international law consider a different “distribution” of authority among decision-makers, academics, and potentially other actors?
Finally Dershowitz mentions that international law does not necessarily produce the most favorable outcome from a state's perspective – thus diminishing both its practicality and value. This leads us to questions surrounding the aim and consequent structure of international humanitarian law. Whose interest is the law of war intended to serve? Militaries, civilians, states, humanity… all of these groups simultaneously? Does international law face the credibility issues expressed and insinuated by Dershowitz? If international law is really so fatally flawed, is it in need of a dramatic overhaul? Should it be eliminated entirely? What will come to replace it?
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