Law Games
By Clifford D. May

Abd al Rahim al Nashiri is charged with organizing three al-Qaeda attacks including the suicide bombing that killed 17 American servicemen aboard the USS Cole in 2000. Reed Brody, counsel with Human Rights Watch, is concerned about him. In an op-ed in the Los Angeles Times, Brody argues that it is unjust and outrageous that Nashiri is to be tried by a military tribunal in Guantanamo rather than in a civilian court in America. Brody claims he’s concerned for America, too. The U.S., he asserts, “needs a trial that is accepted around the world as a fair search for the truth.”

Around the world? Like in Iran? Syria? Saudi Arabia? Sudan? China? Russia? What exactly are the standards for fair truth-seeking in Cuba and Venezuela?

Such questions do not appear to interest Brody and the many other “progressive” activists aggressively seeking to expand the rights of those waging an unconventional and blatantly illegal war against liberal democracies. Simultaneously, the activists seek to restrict — and often criminalize — the rights of those liberal democracies to defend themselves.

Let’s stipulate that unlawful combatants such as Nashiri deserve due process. That raises the question: What process is due an unlawful combatant? Surely, not the same process that is due an honorable prisoner of war. That would reward terrorists and make chumps of warriors who abide by the laws of armed combat even when to do so imperils their lives. And certainly they do not merit the same process that is due an American citizen accused of a criminal transgression — that’s an entirely different kettle of fish.

Nor can there be serious doubt — even within the hallowed halls of Human Rights Watch — that American military tribunals provide much more fairness and truth-seeking than do the civilian courts of any of the authoritarian states that dominate the U.N.’s Human Rights Council and General Assembly.
What’s really going on here: Brody is one too many lawyers, diplomats, and academics engaged in “lawfare” — a term Peter Berkowitz, the Tad and Dianne Taube Senior Fellow at the Hoover Institution, succinctly defines as the “use of international law as a political weapon.” It will come as no surprise that Israel — the proverbial and perennial canary in the mineshaft — is on the front lines of this conflict. In response, Berkowitz has written a slender but intellectually muscular volume: Israel and the Struggle over the International Laws of War.

Those who proclaim themselves jihadis recognize no international rules governing their behavior. They abide only by their interpretation of sharia, Islamic law, which permits — indeed encourages — violations of the fundamental laws of war such as targeting non-combatants, using non-combatants as shields, disguising combatants as non-combatants, and summarily executing non-combatants.
Curiously, few “human-rights activists” have much to say about these practices. Their goal is not to persuade the barbarians — they would never call them that, though when you’re talking about people who behead civilians on camera, the shoe fits — to reform. Their goal is not to persuade all combatants to uphold a single and humane standard of warfare, what Berkowitz calls the post–World War II “revolution in military affairs” aimed at bringing “the conduct of war under vastly greater legal supervision.” On the contrary, they contort legal reasoning to advantage unlawful combatants over warriors who fight by the rules.

Two examples that Berkowitz explores in depth: the U.N.’s Goldstone report in 2009, which essentially condemned Israel for defending itself from relentless missile attacks while exonerating Hamas for those attacks; and the Gaza flotilla in 2010, which challenged Israel’s right to prevent weapons from being delivered to terrorists. In both cases, Berkowitz writes, U.N. officials, prominent lawyers, and diplomats put forward specious legal arguments that “threaten not only Israel’s national security interests but also America’s because they work to severely restrict the legitimate use of force by liberal democracies generally.”

The legal case made against the naval blockade rests on the claim that Israel is the “occupying power” in Gaza, a territory administered by Egypt until 1967, when Israel seized it in a defensive war against its Arab neighbors. In 2005, however, the Israelis withdrew all troops from Gaza and dismantled every settlement — they even dug up and moved their graves. They left nothing behind except industrial greenhouses meant to be used by Palestinians to grow fruits and vegetables (and which Palestinian “protesters” immediately trashed). Yet according to such activists as Noura Erakat, adjunct professor of international human-rights law at Georgetown University, Israel remains the “occupying power” in Gaza to this day. By what logic? She argues that Israel has “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.”

Based on this criterion, Berkowitz points out, the U.S. occupies both Canada and Mexico, Egypt is the occupier of Libya, and Russia occupies Latvia. Erakat also chooses to ignore long established principles of international law that would undermine her assertions. Among them: For a territory to be considered occupied, the occupier must exercise “effective control” in that territory, and the enemy forces there must have surrendered. But Hamas, not Israel, is the ruling power in Gaza. And far from surrendering, Hamas continues to fight, launching missiles against Israeli towns, sending terrorists into Israel to stage attacks and kidnappings, and vowing to defeat Israel and exterminate Israelis.

It is inevitable, Berkowitz argues, that the discriminatory standard being applied to Israel will be applied to America and other nations attempting to defend themselves from terrorism. That is already happening: Brody’s appeal in behalf of Nashiri is only the most recent of many examples that could be cited.

If these efforts are successful, whatever progress has been made to reduce the brutality of war will be reversed. The integrity of international law itself will be undermined. All this ought to be both obvious and alarming. Which raises another question: What motivates Brody and other activists to want to take us down this road?

— Clifford D. May is president of the Foundation for Defense of Democracies, a policy institute focusing on national security and foreign policy.

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