PART II – Dershowitz Analyzed: An Insufficiently Broad Condemnation of a Complicated and Malleable Regime

This post is the second of a three part series regarding Alan Dershowitz’s recent criticism of international law (to see his full remarks, please use the link in the last blog post). During this entry I intend to concentrate on some of Dershowitz’s observations on international law, both stated and implied, with a particular focus on their relevance to IHL. This response will address certain legal and philosophical issues expansive enough for many scholars to devote lifetimes too. I only attempt to scratch the surface on what I hope will continue to be a proactive, healthy and lengthy debate on these subjects. 

Dershowitz aptly notes that rationality must be understood as a product of perspective within a given context. However, this does not mean that certain ethical concerns in the name of humanity cannot be codified, ratified and generally implemented. The vast majority of the world’s nations have come together to create and advance numerous treaties and prohibitions delineating the use of force in conflict. The United Nations and Geneva Conventions are the best representations of this universal attempt to protect and advance humanitarian goals. Specifically, nearly every nation has agreed to adhere to the foundational principles of IHL: distinction, necessity, proportionality, and humanity. As Dershowitz knows well as a distinguished defense attorney, just because a small, even dangerous minority may not follow the law, it does not mean that the law itself has failed.

Nevertheless ethical norms that help define humanitarian aims are constantly changing. In this regard international law, unlike other legal constructs that may improperly constrain progressive applications due to their structural rigidity, is designed to recognize and usurp customary modifications. Along with ethical changes, technological advancement has completely altered the way war is both conceived and decided. Consequently who is most affected by war has changed dramatically. Today, the vast majority of casualties during armed conflict are civilian. It is not only logical; it is necessary for IHL to adjust to this reality in order to maintain relevance.

Dershowitz however, attacks this flexibility, arguing that international law has turned into a left-wing academic exercise in fantasy. This is, of course, patently false. Dershowitz is insinuating that a dichotomy exists between damage to the enemy and protection of civilians. Yet IHL as well as most of its scholars and practitioners do not see these concerns as contradictory or mutually exclusive. Additionally, IHL is embraced and advanced by almost every organized military in the world – codified in military handbooks, disseminated by military officials, regulated in the field by military advisors and officers, as well as explored in military institutions of higher learning. “Rational” operational concerns are both loudly and commonly voiced within forums aimed at advancing IHL – including our own IHLToday.com. The structure of IHL not only encourages military and state participation, it requires it.  

Dershowitz’s most potent and reasonable critique is that international law does not necessarily produce the most favorable outcome from a state’s individual perspective, thus diminishing both its practicality and value to this state. But is the law of war intended to serve individual states? If not, whom? This question has been contemplated since pagan antiquity. The best answer may be a non-answer. International Law’s structure is designed to preserve life – civilian or combatant. Doing so requires the cooperation of states (and increasingly non-state actors), international organizations as well as individuals. International law admittedly prospers when the reciprocity of its aims are respected by all relevant belligerents. However international law’s greatest successes have arguably occurred when one party to a conflict upholds this doctrine despite flagrant violations by its enemy.   

International law (IHL included) does not always provide a clear, practical or even beneficial (by its own stated goals) comprehension of the law. It is absolutely critical that we choose to address these situations as soon as possible by shaping IHL’s already pliable structure to ensure it suits both contemporary norms and conflict reality. Anecdotally, I fully admit that IHL is far from perfect. I personally acknowledge certain rare actualities where violating the law of armed conflict as it is currently appreciated is necessary to uphold its core principles (famously elaborated by Gabriella Blum). I do not believe that these circumstances warrant IHL’s broad dismissal or prejudicial condemnation. I believe they warrant dialogue. This is the very purpose of IHLToday.com. Please continue to follow, share and participate. 

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