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Israel today stands on the frontlines of a new struggle over the international laws of war. Terrorist groups and their state sponsors use international law as a political weapon, and liberal democracies, particularly Israel and the United States, are the principal targets. Despite openly repudiating their obligations under the international laws of war, terrorists and their allies exploit these same laws to criminalize the right of liberal democracies to defend themselves. At the same time, liberal democracies, particularly Israel and the United States, confront diplomats, international human rights lawyers, and UN officials who exhibit extravagant faith in the ability of diplomacy and courts of law to resolve disputes among nations. They aim to rewrite the international laws of war to reduce the range of circumstances in which states may lawfully use military force. Unfortunately, they depreciate or leave out of the equation terrorists' resolve to accomplish their goals by using violence of all conceivable kinds against civilians.
Growing out of the work of the Hoover Institution's Koret-Taube Task Force on National Security and Law, this book examines recent abuses of international law, focusing specifically on the deeply flawed legal, political, and strategic judgments put forward in the UN's Goldstone Report of 2009 and in the Gaza flotilla controversy of 2010. Although these judgments have enjoyed remarkable influence, especially in Europe, the United States, and even in some precincts in Israel, Peter Berkowitz shows how the assumptions, principles, and conclusions they advance threaten not only Israel's national security interests but also the United States' because they work to restrict unjustly the use of force by liberal democracies.
The modern international laws of war have in many respects made the inherently brutal enterprise of war more humane. At the same time, they have been marred by a politicization and idealization that reward terrorism and weaken liberal democracies' right of self-defense. As the author concludes, the next generation of young men and women who will assume responsibility for the preservation and elaboration of the international laws of war must be educated to respect the distinction between politics and law and to appreciate not only humanitarian responsibility but also military necessity.
Lawfare: a political weapon used by terrorists—and supported by the United Nations
In recent years, the term lawfare has come to describe the use of international law as a political weapon. The Goldstone Report, which was published by the United Nations in September 2009, and the Gaza flotilla controversy, which erupted at the end of May 2010, are examples of lawfare in action. In both cases, diplomats, international human rights lawyers, and UN officials put forward weak or indefensible legal arguments to condemn actions taken by Israel in self-defense. In Israel and the Struggle over the International Laws of War, Peter Berkowitz exposes these abuses of the international laws of war by bringing into focus the flawed assumptions on which they rest and refuting the defective claims they promulgate.
Berkowitz shows how the Goldstone Report engaged in disreputable fact-finding and misapplied the relevant legal tests, even as its mission lacked proper foundations in international law. And he demonstrates that the arguments presented in the Gaza flotilla controversy to condemn Israel's blockade of Gaza as unlawful prove on inspection to be unsound and insubstantial. The result, he explains, is to reward terrorists who, in gross violation of the international laws of war, seek to eradicate the distinction between civilian and military objects and to punish liberal democracies—in particular Israel and the United States—that expose their soldiers and civilian populations to heightened risk in the quest to wage war lawfully.