The Palestinian Authority (PA) has now moved a step closer to making good on its threat to go to the International Criminal Court (ICC) and bring charges against Israel. There is little doubt that this was a move Palestinian President Mahmoud Abbas tried desperately to avoid. In the end, he was forced to do it by a combination of U.S.-Israeli rejectionism, Palestinian desperation to do something to try to end Israel’s occupation, and his own many missteps.
Abbas signed on to 18 international agreements after the quixotic attempt to pass a resolution at the United Nations Security Council (UNSC) predictably failed. Among them was the 1998 Rome Statute, which established the ICC and took formal effect in 2002. This is the step that the U.S. and Israel have warned Abbas against most strongly. Among all the “unilateral steps” the Palestinians could take (which, one should note, is no more “unilateral” than any number of actions taken by Israel on a routine basis), this is the one Israel worries about most.
The reason, of course, is obvious. Israel knows it has committed war and other international crimes—some very serious—in the course of its occupation. While Israel generally scoffs and waxes indignant at critical world opinion, it is concerned that being hauled before the ICC could further negatively impact public and elite opinion in Europe, Israel’s main trading partner, where patience with Israeli policies has grown ever thinner.
Abbas knows only too well that he risks losing what little power he has in the West Bank. There are many ways this move can blow up in his face, and most of the roads to success are going to take more time than he has. That he has taken this step testifies to his desperation.
When, on behalf of the Palestinians, Jordan submitted its resolution to the UNSC last month, it did so under tremendous pressure from other Arab states. Abbas and Jordan’s King Abdullah had preferred to wait until France was ready with its own resolution, which the United States had strongly hinted it would support, or at least not oppose. Abbas knew full well that, even if the Palestinian resolution had mustered the nine votes needed to pass the UNSC, Washington would have vetoed it. Approval of the French version, while toothless and lacking a fixed deadline to end Israel’s occupation, would at least have had virtue of demonstrating the international community’s insistence on a two-state solution.
But internal pressure to submit the Palestinian version, as well as the external pressure that turned out to be decisive, seems to have pushed the French version to the back burner, at least for the time being. With the expected failure of the Palestinian resolution at the UNSC, Abbas was forced to carry through with his threat to sign the Rome Statute, a move that many Palestinians, including many in his own Fatah faction, had been clamoring for ever since the 2012 U.N. General Assembly vote that granted Palestine non-member observer state status, thus enabling it to join international agreements and UN specialized agencies.
In the long run, this is a move that could pay off for the Palestinians, but it carries enormous risks, especially to the PA. The most obvious and immediate threats lie with the responses that can be expected from Israel and its most important foreign backer, the new Republican-led U.S. Congress. Many in Congress have made it clear that they intend to push for suspension of aid to the PA if it signs the Rome Statute. And Israel will surely ramp up its settlement expansion and likely once again withhold taxes it collects on the PA’s behalf. The resulting economic impact could very well lead to the PA’s collapse.
That outcome has been forestalled in the past by Israel’s recognition that the security and economic costs it would inherit would be exorbitant. Israeli officials not only allowed their own cooler heads to prevail, but also urged restraint on their friends in Congress. Despite the recent splash the Labor Party made by joining forces with peace process veteran Tzipi Livni, Bibi Netanyahu’s main challenge still comes from his right in the elections scheduled for mid-March, and he can’t afford to look soft on the Palestinians.
That certainly won’t help Abbas. He knows the dangers that confront him. Moreover, the approach to the ICC carries another risk. Even if Abbas survives the Israeli-U.S. response, it is very possible that Hamas will also face charges at the ICC. The case against Hamas, while covering crimes involving far less destruction and loss of life, is also more clear-cut than one likely to be brought by the PA against Israel, whose acts in Gaza and in the day-to-day occupation of the West Bank will require lengthy investigation. Should Hamas find itself on the losing end of the law before Israel does, Abbas’s position is likely to weaken further.
Despite his moves toward internationalization, Abbas still much prefers to work with Washington. U.S. fecklessness in the face of persistent Israeli opposition to any diplomatic initiative, however, has essentially brought him to this Rubicon. And his own clear reluctance to cross it will itself likely diminish the chance of success.
Under the Rome Statute, the Palestinians will not be able to formally file any cases with the ICC prosecutor for 60 days from the date of signing. That time will certainly be used by the Obama Administration, which will no doubt argue that such a filing could bolster the Israeli Right in the critical final days of the election campaign, to pressure the Palestinians against going forward. Still, the repeated failure of the Security Council to address the occupation in any substantive way, coupled with the failed history of the U.S.-brokered peace process, has sent the Palestinian people the message, however unintentionally, that diplomacy and cooperation are dead-end strategies. That is going to lead to more Palestinians embracing the violent paths called for by Hamas and other, considerably more militant, factions.
At the same time, Palestinians have seen the futility of armed struggle over the decades. Failure at the UNSC and joining the ICC — but then forgoing charges against Israel – will only increase Palestinian despair and desperation. That will no doubt lead to more of the kind of “lone wolf” attacks that Israelis endured in 2014.
The one party that could make a difference is the European Union (EU). It can exert serious pressure on Israel of a kind even the United States cannot match. The EU accounts for nearly one-third of Israel’s export business. (By comparison, the U.S. accounts for just under one-quarter). Labeling settlement products (as some EU countries currently require, but don’t generally enforce) could be a first step. And if it is couched as a warning that sterner measures are in the offing, the impact on Israeli thinking could be significant, perhaps even a game-changer.
Indeed, ultimately, that sort of European action is what Israel fears. If the Obama administration wants to see a reversal of the downward spiral its own peace-making efforts have helped create in Israel-Palestine, it could quietly encourage the EU in that direction.
Such a course would be wise. Abbas’s strategy of relying entirely on U.S. help to pull him through has clearly failed, and his reign, whether due to a P.A. collapse or just his own advancing age, will not last much longer. He has no clear heir apparent, so what comes after is a mystery. The United States won’t exert significant pressure on Israel in the near future, and, absent some unanticipated shock, Obama’s successors in the White House are unlikely to spend as much political capital as he has on resolving the conflict. The pressure must come from Europe and from the Palestinians using whatever international tools are at their disposal.
This is, after all, just what was always demanded of the Palestinians—that they pursue their goals without recourse to violence. If a peaceful path to statehood is denied them, ongoing and escalating violence is all we can expect to see.
]]>by Mitchell Plitnick
Once again, in his speech Wednesday at the United Nations, President Obama revealed the reduced importance of the Israeli-Palestinian conflict on his agenda. He also revealed just how out of touch his entire country is with respect to reality.
The Israel-Palestine conflict was the last specific global issue mentioned by Obama in his address to the UN General Assembly, and his wording was straight out of the playbook. It was also only mentioned briefly and without any hint that the United States would be taking any action at all on the issue.
Here’s what he said:
Leadership will also be necessary to address the conflict between Palestinians and Israelis. As bleak as the landscape appears, America will never give up the pursuit of peace. The situation in Iraq, Syria and Libya should cure anyone of the illusion that this conflict is the main source of problems in the region; for far too long, it has been used in part as a way to distract people from problems at home. And the violence engulfing the region today has made too many Israelis ready to abandon the hard work of peace. But let’s be clear: the status quo in the West Bank and Gaza is not sustainable. We cannot afford to turn away from this effort – not when rockets are fired at innocent Israelis, or the lives of so many Palestinian children are taken from us in Gaza. So long as I am President, we will stand up for the principle that Israelis, Palestinians, the region, and the world will be more just with two states living side by side, in peace and security.
Could this have been any emptier? Just last month, Israel and Hamas were engaged in the biggest uptick in violence since the Second Intifada was in full swing.
The message from Obama comes through, though: We’re no longer interested in forcing the parties to the table. The subtext behind that is a US surrender to the stubbornness of the far-right wing government running Israel these days. The US will stop pressuring Israel for talks, and indeed, it already has. The question this raises, of course, is how the Obama administration will respond when and if the Palestinian Authority makes good on its repeated threats to bring this issue to the UN and the International Criminal Court.
In such a case, Obama will undoubtedly condemn the Palestinians’ “unilateral action”—de facto US policy dictates that when the Palestinians take action, it is to be condemned, but when Israel does the same thing, it is, at worst, “unhelpful.” Yet the real question for the Palestinians is whether the United States will have any other response outside of some pro forma public statement. Obama’s hands-off approach seems to imply that it will not, though Palestinian President Mahmoud Abbas would be unwise to count on that.
But there’s another piece of this statement worth examining. Obama said, as he has many times, that the situation is unsustainable. He also notes that one myth that has long been held by many has been exposed as false by recent events: the notion that Palestine is the key source of instability in the region.
Obama is correct about the exposed old myth, but he merely spouts another in its place. Of course the occupation will not remain the same as it is today. It has changed some of its characteristics, almost always to the detriment of the Palestinians, many times since 1967. But the essence of the matter, the relationship between an occupying power and an occupied people locked in a conflict over land, rights, narratives, nationalism and competing claims of justice, has endured quite well over those years.
The Israeli right-wing was long aware, and often stated, that their subjugation of the Palestinians was not the main cause of instability in the region. Of course, there was a time when there was a much stronger argument for that myth. When the many Arab regimes, throughout most of the 20th century, were comfortably entrenched in power, things were pretty stable, as they often are under dictatorships that maintain their control. Under those circumstances, the cry of “Free Palestine” was heard much more loudly, as it was the only one the dictators would permit. Due to many factors (especially the US invasion of Iraq), that stability was shattered and, as one would expect, much of the Arab world, while not forgetting the Palestinians, demonstrated a focus on the miserable conditions they themselves were living in, and conflicts within their own countries. Thus, the myth was exposed.
But we need no shakeup like the Arab Awakening to see that the claim that the occupation is “unsustainable” is a myth. We really need only see that it has endured for more than 47 years, and when circumstances did threaten the status quo, Israel adapted its occupation to meet those circumstances. The most obvious example of that is the massive tightening of the occupation and even more massive expansion of settlements that constituted Israel’s response to the Oslo Accords.
Of course, it is a truism that any oppressive regime eventually meets its demise. That is clearly not what Obama means when he calls the occupation “unsustainable.” Rather, he means what so many others mean: Israel cannot continue to hold millions of Palestinians without rights. But, like so many other myths around Israel-Palestine, this one doesn’t bear scrutiny. Israel has done this for 47 years, and can do it for the foreseeable future. The demise of the occupation regime will come, as the demise of all regimes eventually come. But there is nothing particularly unsustainable about this one.
The Israeli right has become the Israeli mainstream, and they are busily coming up with ideas for how to sustain this occupation or, as Foreign Minister Avigdor Lieberman likes to put it, to “manage” the conflict. They recognize that the fear, ingrained in the thinking of many of the early Zionist philosophers of a Jewish Israel ruling over a majority of disenfranchised Muslim and Christian Arabs is unfounded. It turns out that contrary to the expectations of the early Zionist thinkers, Israelis can live with denying rights to Arabs, and the world is prepared to tolerate it, despite the clucking of tongues it evokes.
This issue can be traced back all the way to Theodor Herzl, and it was actively dealt with by Israel’s first Prime Minister David Ben-Gurion and, most notably, by the person in charge of land acquisition for the Jewish National Fund both before and after the State of Israel was established, Yoseph Weitz. In modern times, this notion has been expressed as a “demographic time bomb,” most notably by Netanyahu’s predecessor, Ehud Olmert.
But there’s no reason to believe this is really a problem. After all, according to the February 2014 report of Israel’s Central Bureau of Statistics, there are about 6,119,000 Jews in Israel and the West Bank. Between the West Bank, Gaza and Israel, there are some 5,894,631 Palestinians, according to the CIA World Factbook. Given the different population growth rates, Palestinians will be a majority very soon, but the day that happens, what is going to change? On the ground, in day to day life, what will be different than the day before?
The answer, of course, is that nothing will change and the Israeli right wing understands this. The United States, on the other hand, does not appear to. More to the point, the many activists who believe that Jews going from 51% of the population to 49% of it will suddenly mean that Israel is an apartheid state, as both Olmert and another former Prime Minister, Ehud Barak warned, also do not understand that when that line is crossed nothing will change. Nothing will change when that so-called demographic time bomb goes off.
So, while right wing leaders like Naftali Bennett consider ways to continue to “manage” the Palestinians indefinitely, Obama and a great any others, in the United States, Israel, Europe and even some among the Palestinians, continue to engage in myth-making and wishful thinking.
If this conflict is ever to be resolved, the only path to it entails full acknowledgment of the realities, on the ground, in the international diplomatic sphere and in politics. Anyone who truly believes that the demographic counter clicking down to under 50% Jewish will somehow shock the Israeli people and their government into recognizing the injustice of the occupation is engaging in fantasy. Such demographic changes are gradual, and this cushions the change so it is not a shock. In 1960, Whites, who were always an overwhelming minority, made up less than 20% of the population of South Africa, and Jews are unlikely to ever be anywhere near that small a minority in Israel-Palestine.
This is only one of many myths that need to be abandoned for any kind of resolution to be possible. It’s no less important to dispel these fanciful notions than it is to counter the stereotypes of Palestinians that are so widely held in the United States, Israel and elsewhere (like “they just want to kill the Jews” for instance). One way we will know people are serious about taking on this vexing conflict is when we see them abandon false notions and recognize that Israel-Palestine can contribute to a better world simply by ending the injustice and violence. When that’s the motivation, and it is applied to both sides, we’ll be getting somewhere.
]]>by Mitchell Plitnick
In part one of this piece, I began sketching the picture that emerges from the words of U.S. diplomats to an Israeli reporter. There’s more here, and the image is one of the United States as the party ultimately responsible for the failure of not only this [...]]]>
by Mitchell Plitnick
In part one of this piece, I began sketching the picture that emerges from the words of U.S. diplomats to an Israeli reporter. There’s more here, and the image is one of the United States as the party ultimately responsible for the failure of not only this round of peace talks, but also the previous rounds. I’ll resume here by completing the analysis of what was reported in YNet.
On the Israeli demand that the Palestinians recognize Israel as a “Jewish state,” the group of anonymous U.S. diplomats told Israeli reporter Nahum Barnea:
We couldn’t understand why it bothered him [Mahmoud Abbas] so much. For us, the Americans, the Jewish identity of Israel is obvious. …The more Israel hardened its demands, the more the Palestinian refusal deepened. Israel made this into a huge deal — a position that wouldn’t change under any circumstances. The Palestinians came to the conclusion that Israel was pulling a nasty trick on them. They suspected there was an effort to get from them approval of the Zionist narrative.
Seeing this in print truly shocked me. There were three objections to this idea from the Palestinians. Those where there all along, yet the U.S. speakers seem aware of only one of them: the validation of the Zionist narrative over the Palestinian narrative. The other two objections were that such recognition (unprecedented in international relations, one hastens to add, and something that Israel demands only from the Palestinians and no one else) would necessarily give a Palestinian stamp of approval to discrimination against non-Jews in Israel, most of whom are Palestinian; and that it would, by definition, preclude the question of the return of Palestinian refugees, a matter Abbas may be resigned to, but which he wants to deal with in negotiations in the hope that some redress for the refugees can be settled upon.
For these reasons, the recognition of Israel as a “Jewish state” is a major red line for Abbas. It was so when the issue was first mentioned by Ehud Olmert years ago, and has been true for all the time Israeli Prime Minister Benjamin Netanyahu has been talking about it. This is no secret, everyone on all sides knows what the issue is and why it is controversial. Everyone, that is, except the U.S. team assigned to mediating these talks.
The U.S. reveals a level of incompetence here that is staggering. It’s true that many cynics like myself have long claimed that U.S. diplomats cannot be helpful in Israel-Palestine because they are much more concerned about keeping Israel happy than pressing for the politically difficult choices that must be made for any agreement, and/or they just don’t understand what’s going on. But even for us, this interview adds a new dimension: the U.S. team is not only way out of their depth in dealing with Israel, they apparently have no idea that this is even the case. That combination of ignorance, enormous hubris and basic incompetence is the only explanation for the way these people are speaking about the collapse of the peace talks, which went exactly as most observers, across the spectrum, said they would go.
Ultimately, this picture forces the question: just what do we expect the Israeli government to do? Even if the Israeli leadership was more moderate, do we expect them to take huge political risks simply out of the goodness of their hearts, or because of threats that remain theoretical?
Why, I wonder, do we expect Israel to behave differently than any other government? There is a serious imbalance of power between Israel, a stable country with functioning political systems, a relatively well-to-do economy, and by far the strongest military in the Middle East, and the Palestinians, who have no infrastructure, no government, an economy barely sustained by international aid and no means of self-defense.
That means that Israel, like any other powerful entity, yields nothing without a demand. And that demand cannot merely be spoken, nor can it be based on abstract notions of justice and peace. Those principles move people to create the pressure that leads to change, but values like peace and justice do not cause governments to change their policies in and of themselves.
The Netanyahu government is the most stable leadership Israel has had in decades. Netanyahu himself has spent more time in the prime minister’s office than any Israeli leader except for David Ben-Gurion. He’s not there because he is a peacenik. Do we expect him to act in direct violation of the wishes of his constituency, especially when most Israelis, while supportive of a two-state solution in the abstract, have repeatedly demonstrated, in polls and at the voting booth, that they are not willing to risk or sacrifice much for that peace?
Do we truly expect Netanyahu or any other Israeli leader to take steps that most Israelis believe, rightly or not, will put lives at risk, and that will, inevitably, create unprecedented political turmoil in the country? Do we expect Netanyahu, just out of a sense of morality, to take a step that will mean the loss of some significant water supplies for Israel and that, given the shifting nature of the Arab world today, may or may not really lead to regional peace? One can fathom Israel taking that risk, but only if there is a compelling reason. There isn’t one right now.
Israel does not fear that its ongoing occupation will brand it as an “apartheid state”; in many people’s eyes, it already is one. And international opprobrium may have manifested in the Boycott, Divestment and Sanctions (BDS) movement, but to date, that campaign has not done any harm to the Israeli economy. Maybe one day it will, but right now, BDS is not pressuring Israel to change. While international anger over Israel’s treatment of the Palestinians has caused a few financial institutions to pull away, capital is still flowing in on the whole. And most of Europe joins with the United States in maintaining strong business ties to Israel. All of these conditions might change, and when/if they do, that might constitute real incentive for Israel to change its approach. That is surely the hope of the BDS movemet. But right now, Israel is not feeling that pressure and does not expect to feel it in the near term. Its sometimes hysterical reaction to BDS is carried out on the level of a propaganda war, not as a strategic political issue.
However, Israel is concerned about the Palestinians dragging their leaders to the International Criminal Court (ICC). So they are preparing their defenses, and they will respond to the Palestinians with harsh measures if they try. Again, at this point, all this is potential, and not actual pressure. If the ICC actually attempts to try Israeli leaders for war crimes, this may change Israel’s thinking, but that is a long way off, and still depends on the Palestinians actually deciding to go that route, though recent developments do make it seem more likely that the Palestinians will do so.
What about this possibility, raised by one of Barnea’s contacts?
There’s great potential for deterioration here, which could end with the dismantling of the Palestinian Authority. Israeli soldiers will have to administer the lives of 2.5 million Palestinians, to their mothers’ chagrin. The donating countries will stop paying up, and the bill of $3 billion a year will have to be paid by your Finance Ministry.
That’s a possibility, but here’s another one: the PA collapses, Israel is forced to assume control and the cost, and Netanyahu, or his successor, appeals to Capitol Hill to help defray the costs by restarting the program of economic aid to Israel that was discontinued in 2008, and even expanding it significantly, as would be necessary, since economic aid to Israel was always much smaller than military. The argument will be couched in supporting our good friend, Israel, and also that paying Israel is the only way to maintain stability without having to put U.S. boots on the ground. There are various ways the U.S. could help defray these costs, and, again, Israel does not fear the Palestinians turning their cause into one for civil rights within Israel. They believe — again rightly or not – that there is enough support around the world for a Jewish state and that, when push comes to shove, this will supersede concern for Palestinian rights.
These factors come together to eliminate any perceived pressure on Israel to compromise. This, more than anything else, is what the United States fails to understand. Ultimately, the U.S. got almost everything wrong in this latest effort, to such an extent as it made their predecessors seem well-informed. But what is most important is this: if you’re not prepared to create the pressure that is required for Israel to make concessions and deal with the fights, in Jerusalem and in Washington, that this will involve, then don’t bother even starting such a process.
Obama seemed to understand this at the beginning of his first term. He tried to pressure Israel into a settlement freeze. But he underestimated the forces that would oppose him, and when he failed, he essentially pulled back. But then he let Secretary of State John Kerry convince him that his personal rapport with the Israelis would make a difference. He was as wrong as you could be. And the result is a politically emboldened Netanyahu and great despair in the Occupied Territories.
And if Israeli policy is so entrenched, U.S. policy seems all the more so in light of Kerry’s humble but dogged effort to make a change in the U.S. approach. The United States has been embarrassed here, and this was one of the most costly episodes, in terms of U.S. credibility, in this conflict where U.S. support for Israel while pretending to be an “honest broker” has been draining U.S. credibility for decades.
Yet despite that, no one expects anything to change in Washington. One last quote from Barnea’s interlocutors: “The boycott and the Palestinian application to international organizations are medium-range problems. America will help, but there’s no guarantee its support will be enough.”
So, if we had any doubt about what comes next, that little tidbit dispels them. Yes, Obama is fed up with Israel, and Kerry is frustrated. Both men are well aware that Netanyahu has repeatedly made the U.S. looked foolish. Kerry has been personally and directly insulted by several Israeli officials just in recent months. But the U.S. will still shield Israel as much as it possibly can.
So when Obama says he’s taking a time out, many have read that as him throwing up his hands and saying “Fine, Israel and the Palestinians can just fight this out themselves.” But that’s not what will happen. Diplomacy may stop, but the $3 billion a year of military aid will continue. So will diplomatic support at the United Nations, where the U.S. will continue to veto every significant UN Security Council resolution that tries to promote an end to occupation. And the U.S. will continue to act as Israel’s advocate in the UN General Assembly, with the Europeans, with Arab states…with the world. In the end, stepping back from this shuttle diplomacy is just another way for the U.S. to make matters worse.
Maybe out of the ashes of this embarrassment something better will rise. But that will only happen if the United States and every other outside player finally learns the lesson of why all these efforts keep failing. The initial indication, as Barnea kindly informs us, is not promising.
]]>Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations [...]]]>
Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations should avoid repeating “past mistakes,” said Lavrov.
More importantly, Lavrov illustrates just how broken and vaporous the system of “international law” is when it comes to conflict and protecting civilians. “The use of force without the approval of the United Nations Security Council (UNSC) is a very grave violation of international law,” he said. And there is no question that he is correct.
An intervention in Syria requires the approval of the Security Council in order to be comply with international law. Such authorizations are, quite naturally, exceedingly rare. Not only does it require a majority vote in the Council, but, more importantly, all five permanent members of the Council (the US, Russia, China, Great Britain and France) must also agree. Any one of those countries can exercise its right to veto any resolution before the Council.
The idea, in 1945, made some sense. In the post-World War II era, there was still some question as to whether the US and USSR would perhaps build on their wartime alliance and find a way to work together, but it seemed unlikely. An incentive to maintain some sense of order in the world by working together on such matters and being able to block one-sided moves might have seemed sensible. It’s even worked out that way from time to time. But for the most part, it’s been a recipe for paralysis and a means to prevent action on matters of global concern, rather than to promote it.
The most obvious example of this is the matter on which there has been, by far, more Security Council vetoes than any other: Israel’s occupation of territories captured in the 1967 war. From 1946-1971, the USSR was the overwhelming leader in Security Council vetoes; no other country was even close. These were, of course, mostly Cold War-related resolutions that directly or indirectly took aim at Soviet actions and policies in various parts of the world. Since then, the overwhelming leader has been the United States, with the clear majority of those vetoes being made on behalf of Israel, protecting its occupation and concomitant violence and settlement expansion.
Indeed, in recent years, the problem has gotten so bad that most resolutions regarding Israel-Palestine have been withdrawn in advance, knowing the US will veto as a matter of course. The matter reached its ultimate absurdity in 2011, when the Obama administration vetoed a UNSC resolution that stated nothing at all that was not already official US policy. But the veto was expected and required. The fact that it was such a moderate resolution raised fears among AIPAC and its various fellow travellers in the Israel lobby, and there was a lot of public pressure on Obama to veto. But there’s no reason to think he wouldn’t have done so anyway.
Politics and power, not international law, govern international matters. The fact is that legality will have no bearing on the US decision to attack Syria or refrain from taking action. The decision will be based on strategy and politics.
The system of international law is irreparably broken. Ultimately, any system of law depends entirely on the ability of the judicial body to enact penalties and sanctions on lawbreakers. Such penalties don’t exist for the United States, nor for Russia or China or the other members of the Security Council. Britain and France are more compliant with international law than the others, but this is due not to fear of censure but because their own situations (including widespread European support for abiding by international law, as well as the experience of the two World Wars and the end of colonialism, the latter having removed a lot of European disincentives toward international law) push them in that direction.
Indeed, it is worth asking this question: if one believes that intervention in Syria is needed to stop what is already a humanitarian disaster from getting much worse, should international law be ignored in doing so? It seems inescapable that the answer to that question is yes, and one is then left with only the question of whether military intervention will help or hurt the millions of Syrians in the crossfire.
But at what point can we claim with reasonable certainty that the moral imperative trumps the law? Particularly in a hypothetical world where the law actually matters, where should that line be drawn? In point of fact, few people are so naïve as to believe that military intervention ever occurs for purely humanitarian reasons. It is generally done in order to pursue the invading country’s interests, and if some humanitarian good is done on the way, well that is just fine. And most of the time, the humanitarian interests are only a cover for other goals; the situation is often oversimplified so the public will support the intervention, which is sometimes vastly distorted.
In this instance, it is Russia warning the United States against violating international law, but the US has played the same game on many occasions — the 2003 push for a UN imprimatur for the invasion of Iraq being perhaps the most prominent and revolting instance.
The alternative to a world governed by international law is a world where might makes right. That is, indeed, the world in which we live. The point here is not that international law should be done away with. On the contrary, it must be strengthened exponentially. A legal system that can enjoy at least some insulation from the whims of politics, both domestic and international, is crucial, and the International Criminal Court and International Court of Justice have at least some of that. But more importantly, there must be a mechanism where even the most powerful country can be held accountable for violating the law.
Such a system will never be perfect, of course. Even in the realm of domestic law, we regularly see differences in how it is applied and defied by the rich and the poor. But even the wealthiest individuals have to at least consider their actions when breaking the law. Some system where powerful actors are treated the same as everyone else must be put into place. The answer to how that can be achieved is for better minds than mine, but asking the question is the first step.
Other aspects need revision or at least revisiting as well. Sovereignty is a crucial principle, without a doubt, but it is also used by tyrants to shield themselves from, for example, reprisals under international human rights law. The debate over intervening in Syria following alleged chemical weapons use by the Syrian government is inherently related to the current system of international law, which is broken far beyond the point of having any effectiveness. In many ways, it is an obstacle. It needs to be rebuilt, before more Syrias confront us.
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