Defending the S-Word

In this volume, Jeremy Rabkin of Cornell University provides a refreshing antidote to some of the more pernicious trends that have infected the field of international law and organization in recent decades. Galvanizing his vast knowledge of legal history, political philosophy, and international relations, he exposes the fallacies of scholars and practitioners who abhor the “S-word”—sovereignty—and salivate reflexively at the idea of “global governance.” Rabkin forthrightly and unapologetically hails the virtues of American constitutionalism and independence—and indeed of American “exceptionalism,” too—while highlighting the vacuity and dangers of over-commitment to multi-lateralism. Such over-commitment, he suggests, is currently dominant in Europe and among those in the United States who look to Europe for guidance. Where not too long ago Samuel Huntington could warn of a “clash of civilizations,” with the United States and Europe on the same side of the cultural divide, today, Rabkin notes, important rifts on issues of sovereignty have emerged within Western culture. He proceeds to delineate masterfully some of the most menacing of these fault lines, their nature, sources, and repercussions. Implicitly, he places the onus for healing the observed transatlantic breach squarely on the shoulders of the Europeans and their oft-misguided Euro-centric devotees. The would-be healers would surely benefit from paying heed to the evidence, furnished abundantly in this volume, of the untenability of so many currently romanticized notions associated with multi-lateralism and supra-nationalism.

Even the present lexicon, Rabkin notes, is portentous. Instead of the long-outdated concepts of “world government” and “world federalism” that had been in vogue in the immediate post-World War II period, it has become fashionable to speak of “global governance” and “subsidiarity.” “Governance,” unlike “government,” is charmingly ambiguous; it enhances the role of judges as lawmakers, and it does not necessitate the use of force. And “subsidiarity,” he states, is but “a very poor substitute for sovereignty.” Derived from Catholic Church practice, the term is used to characterize the process by which local authorities may be permitted, by the grace of the center, to decide their own affairs.

Is peace, based on respect for law, best secured by surrendering sovereignty to a supra-national authority, as is so commonly assumed, especially in Europe? Rabkin’s answer is a resounding “no.” By misdiagnosing the causes of their continent’s past blood-drenched conflicts, on the one hand, and extrapolating inappropriately from their still-continuing experiment in “supra-nationalism” and “subsidiarity” on the other, Europeans offer ineffectual and harmful remedies for the world’s ills. It is not sovereignty in general, Rabkin explains, that is minatory; it is sovereignty in the hands of those who entertain sinister ideologies that threatens the world with disaster. The goals of German Nazism and Soviet Communism, he reminds us, were to abolish existing sovereignties and to replace them with a new form of imperial, “supra-national,” authority. And the key to foiling these plots was found in the legitimate exercise of “sovereignty” and the inherent right of individual and collective self-defense. The identity of the plotters and of the most menacing ideology confronting the world may have changed, but the key to thwarting the evil designs remains the same.

Just as “sovereignty” in the abstract is not the culprit, and in the right hands is rather the savior, supra-national and multi-lateral institutions are not necessarily the salvation, and in the wrong hands represent a major part of the problem. Depending on their composition, agenda, and guiding philosophies, international organizations have frequently proven to be ineffectual at best, and too often greatly damaging to the cause of world peace and justice. There is certainly no need to elaborate on the composition and agenda of such bodies as the United Nations General Assembly or the late, unlamented UN Human Rights Commission (or its successor, the UN Human Rights Council, which has proven to be even worse than its forerunner). The General Assembly, Rabkin notes wryly, “is no strong argument for the wisdom and benevolence of the ‘international community.’” It, along with the UN human rights bodies, has notoriously devoted a major part of its time to censuring Israel for its acts of self-defense, while ignoring gross human rights violations in such countries as China, Libya, Saudi Arabia, and the former Soviet Union.

Nor is the Security Council’s record very encouraging. It failed to prevent bloodshed in the former Yugoslavia; and the slaughter of some eight thousand civilians in Srebrenica occurred as the Dutch contingent of the UN peacekeeping mission stood by passively. Most grievous was the inaction of the UN and its peacekeepers in Rwanda as the Hutu engaged in massacring almost a million of the Tutsi minority. “Instead of deploying force,” Rabkin writes, “the UN Security Council consoled itself by sending lawyers to these tormented places.” It created ICTY (the International Criminal Tribunal for the Former Yugoslavia) in 1993, and ICTR, the parallel tribunal for Rwanda, in 1994. Both tribunals, he concludes, “were not so much belated action as a substitute for action. Yet both stirred considerable excitement among human rights advocates.” That excitement was, in his view, totally unwarranted.

Indeed, he considers that the entire “human rights crusade”—the topic of a major chapter in the book, with special relevance for Israel—has been generating unwarranted excitement. The problems he cites are legion. They include the undue expansion of the term “rights,” with no indication of priorities: “Moral limits which were once thought to apply only to the most extreme outrages are now thought to apply to a vast range of ordinary policy.” Suffused with an aura of “surrogate piety,” the concept of the international protection of human rights has assumed the character of a new secular religion, problematic in its contours and application.

In the UN “wonderland of international human rights,” “talkfests” and the ratification of toothless treaties replace state action and foster the false and dangerous illusion that this represents real progress in the observance of human rights. “Saudi Arabia becomes a recognized adherent to the convention against sex discrimination,” and “China claims to be in full compliance with the Covenant on Civil and Political Rights.” In the real world, as a recent study cited by Rabkin demonstrates, “compliance with human rights standards commonly went down after states ratified human rights conventions.” The ratification process enabled states to “deflect criticism of their actual conduct”; and, “far from stigmatizing the worst offenders… the UN system helped to exonerate them, indeed to elevate them.”

This outlook is very seductive to many Europeans for much the same reason. If the issue is military action, then Europeans have very little to contribute. But if the world can be fixed by moral and legal appeals, Europeans can imagine that they have more skill with such tools than people anywhere else and certainly much more skill in this arena than government officials in the United States.

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.

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.

Some readers may well feel that Rabkin presents too starkly matters that are controversial and that might call for more nuanced treatment. For example, it might be argued that the United States constitution is compatible with a much greater measure of “supra-nationalism” than Rabkin is prepared to concede. The issue of compatibility depends on how one interprets the constitution—and also when “sovereignty” may be said to have been alienated. The latter issue was one with which the Permanent Court of International Justice (and especially Judge Anzilotti) grappled in the 1931 Austro-German Customs Regime case. When, it was asked, could one conclude that the facility to contract with other states—an admitted essential feature of sovereignty—had reached the point where a contracting state became, in effect, no longer independent and sovereign? The conundrum was not (and perhaps could not be) readily resolved.

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.

Azure no. 29, Summer 5767 / 2007

Defending the S-Word