Very different postulates underlie the concept of “sovereignty” as embodied in the American constitutional system and rooted in classical liberal philosophy. “The central meaning, historically” of sovereignty “is the power to enact and enforce laws.” This is also the perspective of The Federalist Papers. Diverse groups even within the state are not expected to agree and compromise automatically. But by limiting its intervention in matters which should remain in the private sphere and mediating between the claims of the contending groups in accordance with agreed processes, the state is able to command the ongoing loyalty of its citizens and protect their fundamental rights.

Some of the innovations that have been introduced in recent years for promoting respect for internationally proclaimed human rights and for punishing gross offenders have been widely (often unthinkingly) hailed as great achievements and advances; but they deserve, and receive from Rabkin, closer and more critical attention. He notes the shortcomings and dangers—on legal and practical grounds—of adhering to the Rome Statute establishing the International Criminal Court (ICC) and of the recent tendency by states (including the United States) to apply, by legislation and jurisprudence, expansive versions of universal criminal jurisdiction. This type of jurisdiction permits any state to try any person for international crimes committed anywhere—most prominently, in recent years, for war crimes, crimes against humanity, genocide, and torture. The law under which Belgian prosecutors sought to try former Israeli Prime Minister Ariel Sharon in absentia for his role in not preventing the 1982 Christian massacre of Muslims in Sabra and Shatilla was a prime example. In other states, application of universal jurisdiction usually requires that the accused person be physically present within the state in which he is tried; and this can seriously restrict the ability of soldiers and officers of states engaged in wars of self-defense to travel abroad. Thus, Doron Almog was advised to return to Israel immediately upon landing at Heathrow because of a threatened prosecution under British law. The Belgian law was later drastically amended, but only after the United States intimated that it would work to remove nato headquarters from Brussels. The implied threat came after the law was invoked against President George Bush the elder and his secretary of defense (now vice president), Richard Cheney, for alleged “war crimes” in the Gulf War of 1991.

Rabkin notes that the system for ensuring wider respect for human rights has not visibly succeeded in deterring the worst human rights abusers, but it may well serve to deter those who would most boldly lead the confrontation with them. The new approaches to both jus ad bellum (the rules on resorting to force) and jus in bello (the laws of war, termed today “international humanitarian law”) have a similarly deleterious effect. They seriously restrict the traditional and UN Charter-sanctioned right (in Article 51) to individual and collective self-defense. And by granting privileges in combat even to those guerillas who do not abide by the traditional laws of war, they knock out the central props of reciprocity and combatant-civilian distinction that had previously sustained the laws-of-war edifice. Some of the implications of this jettisoning of the earlier wisdom are spelled out pithily by Rabkin, in his comments on the ICC Statute:

Even a democracy at war cannot expect the ICC to take account of what it may need to do to defend itself. The ICC Statute, like the [First] Additional Protocol to the [1949] Geneva Convention on which it draws so heavily, insists that restraints in war are binding—whatever the opposing side may do. So it is a crime to interfere with ambulances—even if the other side uses ambulances to smuggle guns and fighters. It is a crime to attack churches and mosques—even if the other side uses them to shield its fighters. It is a crime to attack civilian installations—even if the other side uses them to shield its weapons and fighters. It goes without saying that Israel will find itself in violation.

Originally espoused by the third world-Soviet coalition in the face of Western European resistance, the new perspectives came to be embraced by a strongly pacifist Europe by the 1990s. And to buttress these new perspectives, its proponents increasingly welcomed new theories, previously spurned, regarding norm-formation in international law. “Soft law” became the new byword. Unlike “hard law”—the only law known in traditional international law—which is premised on state consent and practice, the new category encompasses what states preach to others—primarily in non-binding resolutions and in a variety of hortatory statements. Beginning as mere “aspirational norms that are not quite binding,” “soft law” rules, by dint of repetition, are later deemed to have “‘hardened’ into binding, customary law.” It can readily be seen why states that do not enjoy the benefits of automatic-majority support in international fora—Israel, surely, but also the United States—would not endorse such untenable claims to bind states without their consent.

Nor would they look favorably on the circumvention of state consent because of the presumptions of NGOs to possess a “higher moral authority” than sovereign states and to speak for a so-called “global civil society.” Underscoring the implausibility of such self-serving propositions, Rabkin observes:

The domestic counterpart would be to claim that a bill passed by the House of Representatives should be treated as “law,” even though rejected by the Senate, so long as it has also been endorsed by Ralph Nader’s Public Citizen organization, by the University of Wisconsin Faculty Senate, by the Berkeley City Council, by the New England Chamber of Commerce, and by many other “voices.”

“Normal Americans,” he adds, “would scoff at such a ‘procedure’ for making law.” Moreover, the best-known NGOs that assume the mantle of disinterested judges on human rights and war/peace issues are seen, on closer inspection, to be unaccountable groups too often pushing their own, decidedly non-neutral agendas. Among the stark illustrations that Rabkin cites are the failure of Amnesty International (AI) to react to the slaughter of a million people in Cambodia in the 1970s; the endorsement by AI and Human Rights Watch of Palestinian claims to a “right of return” to Israel’s pre-1967 borders; and the long-deafening silence of both groups in the wake of the campaign of suicide bombing launched by Arafat in 2000. The NGOs’ parallel conference on racism at Durban in the summer of 2001 “indulged in such extreme and explicit anti-Semitic tirades—among other things, reviving classic incitements to genocide like the Protocols of the Elders of Zion—that even the UN’s commissioner for human rights, Mary Robinson, expressed concerns.” “But by then,” Rabkin adds, “it was well accepted that NGOs spoke for ‘humanity.’” (It might be noted that the latest Lebanon War furnished abundant illustrations of NGO blatant anti-Israel distortions and bias. Removing the false mask of legitimacy surrounding many NGOs is a task that has been admirably performed by NGO Monitor, headed by Gerald Steinberg, in recent years.)

The NGO bias, as Rabkin demonstrates, is well ensconced in Europe. Indeed, a major thread running through this volume is that of European weakness, duplicity, appeasement, and moral pretensions. And in the last section of his chapter on “Eurogovernance,” Rabkin presents a damning indictment of EU policy in the Middle East. By its support of Arab initiatives in a wide array of international fora, he asserts, the EU “in effect… replaced the Soviet Union as the most important international sponsor of Arab nationalist rhetoric.”

 

Besides the material that relates directly to the Israeli-Arab conflict, the themes of the book have great relevance for Israel in its ongoing battle against terrorists and their appeasers. Most Israelis will surely appreciate Rabkin’s emphasis on the issue of enforcement and his excoriating the unthinking embrace of “global governance” and futile legalist-moralist approaches.

Among the book’s many virtues are its useful and concise overviews of political thought and the development of Grotian international law. The discussion of Jean Bodin, his theory of sovereignty, and his attitude to Jews and to Jewish sources is particularly illuminating. The wealth of information and keen analysis offered in the book on a wide variety of subjects and presented in an engaging, witty, and easily comprehended style make for an eminently readable volume. Professionals and practitioners in the fields of political theory, legal history, international relations, international law, and international organization can surely profit from it, but so can intelligent laymen.

On another matter, where Rabkin sees continuity in American objections to multi-lateralism, others might discern rather a cyclical pattern. And as for “Wilsonianism”—a term with a chameleon-like quality—Rabkin’s definition reflects the realist view of Wilson as an impractical dreamer:

Whether or not Wilson’s own naïveté and idealism have been overstated, it would be hard to argue with Rabkin’s contention that Wilsonianism, as he defined it, characterized much of the Clinton administration’s foreign policy. “Meaning well to all, it did not have to make hard commitments to any place in particular.” It was “vaguely sympathetic to universal ideals and global projects,” but unlike Wilson, Clinton made no serious effort to mobilize support in the Senate for such controversial initiatives as the ICC. “In the 1990s,” Rabkin concludes, “the United States was not even serious about unserious projects.” All of this raises the disconcerting prospect that given current trends within the Democratic Party and popular discontent with the Iraqi situation, we may indeed witness a return to a form of multi-lateral isolationism—a weakening of America’s willingness to lead and a deferment to multi-lateral fecklessness.

This would be unfortunate, since so much of the discontent of the United States with international institutions—political and judicial—is traceable to the changes that occurred in those institutions and that have since become endemic. Rabkin has skillfully and intrepidly outlined the main problems, including the dangerous embrace of “soft law” and the hobbling of the right of states to self-defense. American unwillingness to join the jackals is thus to be applauded rather than censured. For those who may still wonder why, the present volume should be required reading.

The following couplet, penned by Elizabeth Barrett Browning in the mid-nineteenth century, encapsulates some of the wisdom that Rabkin seeks to convey, and would be an apt addition to his excellent tome: