Rethinking International Law

By Armand Laferrere

It's time to change the way the UN does business, helps the needy, and manages conflict.

Moreover, although the UN Human Rights Commission has never passed a single resolution against China or Zimbabwe, more than a quarter of its resolutions directed against a specific country condemn Israel. Additionally, the regional groups that prepare Commission meetings are organized so that Israel alone, of all the 191 UN member states, is not allowed to participate in preparatory meetings.

An extraordinary session of the General Assembly, as the name suggests, is an exceptional procedure; only ten such sessions have been convened since 1945. Neither the massacre of a million Rwandans in 1994 nor the killing of some two million Sudanese over the past twenty years merited an extraordinary session. Yet six of those ten sessions were called for one reason: To denounce Israel. The tenth session was turned into a permanent court, which has met eleven times since 1997. More astounding, the special UN reporter on the Palestinian territories must list Israel’s wrongdoings, but has no mandate to mention violations of human rights by the Palestinian Authority or terrorist groups.

On July 9, 2004, the International Court of Justice rendered a consultative opinion on Israel’s anti-terrorist barrier at the behest of the General Assembly. Remarkably, the court decision rejects Israel’s argument of a right to self-defense recognized in Article 51 of the UN Charter, on the grounds that Article 51 applies exclusively to threats from a state, which the disputed territories are not. Yet this limitation is not expressed in Article 51, or anywhere else in the Charter, or in any prior treaty or jurisprudence. It was, very obviously, invented for the occasion. Then, in a striking paradox, the court concludes that Israel must withdraw from all the territories occupied in 1967 and make them available for the “constitution of a Palestinian state.” It seems, then, that Palestine is not a state when one wants to protect oneself from its bombs, but is a state when it suits the purpose of requiring Israel’s withdrawal.

The court begins by rejecting Israel’s request to postpone the question of dismantling the barrier to an eventual settlement of the conflict. Noting that Israel’s arguments extend beyond the question raised, the court judges that replying to a precise question on the legal consequences of the construction of the barrier does not deny the existence of a broader problem. Then, after concluding that Israel has an obligation to dismantle the barrier, the court denies the principles it has just established and gives its own uninvited opinion on the future overall resolution of the conflict, pronouncing a long series of principles pursuant to this comprehensive plan. Those principles, surprisingly, are as unfavorable to the Israeli position as they could be.

In shamelessly drafting such cynically incoherent opinions, the International Court of Justice openly renounced the ideal of judicial impartiality, adopting instead the method of a horde unleashed upon its prey. This may well move human beings who still cherish the notion of justice to do away once and for all with international law. Like the phlogiston of eighteenth-century chemistry and ether in the nineteenth, international law would be a wonderful explanatory principle if not for the inconvenience of being unobservable just where it is most needed.

Reassuringly, the UN secretary general, aware of the problems encoun-tered by his organization, last year asked a group of “eminent persons” to produce a report on institutional reform. Less reassuringly, the suggested reforms do not address any of the problems mentioned above.

Indeed, the sixteen wise men made no mention of the practice of laws being drafted by delinquent states, nor did they address the pathological anti-Israel craze, nor, finally, did they acknowledge the continual threat to world security that will exist as long as the world lacks the tools to intervene in the affairs of states that are either bankrupt or accomplices to terrorism. On this last point, in fact, the advisers made several suggestions that would arguably aggravate the current situation: They proposed five conditions that should be fulfilled prior to recourse to pre-emptive force, such as verification of the “proportionality” of the riposte, and proof that the use of such force really is a “last resort.” Clearly, this would leave a terrorist state free to order attacks, deny complicity, and indefinitely pursue its blackmail of the free world by claiming to be open to dialogue and persuasion.

The only possible conclusion that can be drawn from this deliberate blindness is that the UN, in many of its central capacities, is beyond reform. This is not to say that the organization is entirely useless; after all, as the sole forum in which all states are represented, it should be maintained as the site of negotiations, and, after a thorough reform of its internal control mechanisms, it should continue to function in its humanitarian role. But surely the preservation of international law, peacekeeping, and the defense of human rights should be entrusted to others.

All it would take to effect this change is for states that still believe in the ideals of international law, peacekeeping, and the defense of human rights to remove themselves from UN discussions on the subjects and opt to hold them instead in the framework of a new organization reserved for democracies. Prospective members will be subject to admittance according to political and judicial criteria far simpler than the examination currently imposed on candidates to the European Union. The organization’s credibility will be maintained by a policy of easy expulsion in the event of a deterioration of democracy or human rights.

This union of democracies will hopefully prove a strong incentive for democratization for states that are initially excluded. In addition, the new organization will have greater legitimacy than the UN in rendering collective decisions related to war and peace, human rights, and the fight against terrorism. Though democratic states are in the minority with regard to the total number of states, they nonetheless represent a good half of the world population. They are also, on the average, richer and better armed than the oppressors of the other half. This new organization would quickly become the standard-bearer of international law, and the last hope for the just governance of conflicts and protection of human rights.

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Armand Laferrère is a former adviser to the French minister of the interior, Nicolas Sarkozy. He is a member of the board of directors of the Franco-Israeli Friendship Association. A version of this essay appeared in the French journal Commentaire.