So frequently I hear international law used to criticize the morality of Israel’s occupation of Palestine and the Iraq war. While there are valid arguments to be made on these points the sort of vague untechnical international ‘law’ that is evoked in these conversations seems to lack any moral force. The short version of my argument is that law gains extra moral force over and above the moral principles on which it is based by providing a workable, relatively clear and somewhat uniformly applied set of rules for how to behave. Some international laws, like the core of the third Geneva convention do offer such a framework and thus do have moral force above and beyond the principles on which they are based. Unfortunately the types of international law brought up to show the Iraq conflict is an illegal war seem to fail all three of these tests.

Like a law banning gun possession in the wild west the lack of anything resembling enforcement/compliance with this sort of international law renders any extra moral force it may have had void. When the law is unable to protect people we recognize their right to protect themselves even if the law theoretically forbids it, e.g., gun ownership in a country where it is technically a crime but where roving gangs have pushed the police from the streets.

Furthermore the law loses its extra moral force when an individual couldn’t have known if he was breaking the law or not. This sort of international law, both because of its newness and (sometimes deliberately) vague statements provides no real guidance. For instance does the fact that Iraq was still at war with the US eliminate the charge of a war of aggression? What about the continued low level conflict? If not how many enemy planes must one shoot down until they can go to war with you? Does the prior legal classification of the land Israel built its settlements on matter? One might be tempted to scoff at these technical questions but technicalities are the soul of the law. If we abandon the technicalities we are left with only the underlying moral principles. After all if one can ignore what the law actually says or how prior judicial precedent interprets that law then any bad action that is even in the ballpark can be condemned as after all the underlying intent of the law is to prevent bad acts.

Most seriously though is the failure of anything like uniform enforcement for international law. To have moral force all law breakers must not be equally likely to be prosecuted but a law that allows some to openly flaunt it and enforces it against unpopular individuals or acts loses any moral force it might have had. Most problematically for the case against Iraq is the lack of any serious condemnation of the NATO bombing of Bosnia for violating the same supposed laws. Quite simply it appears that rather than laying out a technical framework of what is and isn’t allowed that everyone follows these sorts of international laws are just a disguise (or at least functioning as) for the gut moral instincts of a certain class.

I’m a big fan of international laws in principle. I think we need a genuine international legal system with binding authority that can promulgate clear rules for everyone to follow. However, applying these sorts of rules will require genuine legal knowledge and the arguments will go by way of citation of specific clauses and past precedents. So long as the arguments are mostly just vague moral appeals or supposedly precise rules that apply only to ‘bad’ actors the laws themselves add no more moral force to the underlying moral principles themselves. Worse such inconsistent and feeling driven application makes countries very reluctant to submit to even partial jurisdiction of these laws as they run the risk of finding the specific clauses they have agreed to interpreted as supporting some vague moral principle.

I’m afraid that this misuse of international laws as a substitute for substantive moral argument sets the cause of international law back many years. Instead of vague handwaving toward international law we need some changes in the system. For starters we need to revoke the authority of the ICJ to make advisory rulings, make it clear their decisions are to be based on a narrow application of the text of international treaties and institute the doctrine of stare decisis at the court. Eliminating advisory rulings reduces the temptation of the court to merely comment on political matters, ensures a properly contested process and pressures them to come up with genuine workable solutions, e.g., it is far easier to criticize Israel for occupying Palestine than it is to order specific remedies and live with the blood on your hands it it leads to war or increased terrorism. Implementing a doctrine of stare decisis is most important as it ensures that the courts decisions and reasoning are truly universalizable. For instance if the court wants to adopt a principle that descendants of displaced people, e.g., the Palestinians in east Jerusalem, have a right to return and claim their land back they must also deal with the consequences such a principle would have with respect to the American Indians or other displaced groups or come up with a more genuinely universalizable rule. Finally once these reforms are enacted the court should be given additional power to use trade and patent rules to enforce its decisions.

Basically so long as nations treat international law as something less than law, violating and withdrawing from it as it suits their purposes (Australia denied the ICJ jurisdiction over maritime matters when it thought this might cause it problems) it doesn’t have the moral force that law has. Hopefully I will live to see the day international law becomes real law but until that time the questions we should be debating are whether the Israeli-Palestinian conflict and the Iraq war should violate international law and if so what sort of principle can we articulate that won’t result in other bad consequences.