When Israelis hear the exhortation to “submit” to international law in their quest for peace, they are likely to respond that their enemies use international law as a club with which to beat them. They can reference this with many such attacks, such as the 2001 Human Rights conference in Durban, South Africa, where they felt the NGOs of the world ganged up against them. Those of us with a concern for law need to reject such tactics, both as an abuse of law and as squandering the best opportunity to make progress toward peace after the long agony of the Middle East.
Between Israel and the Palestinians there exists a gulf of disparity in power which, of itself, is a main obstacle to peace. Any agreement between these parties built on that disparity of power can only be regarded, by Palestinians, as a Diktat. Even if an Arafat had signed such an agreement, or if Mahmoud Abbas or any other successor were to do so, Palestinians would not see it as binding because it had been coerced. That means that Israel would not get the one thing it most needs, namely peace.
If we look at the essential character of international law, especially as enunciated by the Charter of the United Nations and the actions of its Security Council and other bodies, we see that this law has no coercive power behind it. It is all a matter of freely accepted agreement among the signatories to the Charter, responsibilities that the nations have taken upon themselves in honor, for the purpose of preventing war. In this way, international law becomes a prime instrument for restorative justice, a system of justice which functions not primarily to convict and punish transgressors but rather to find ways for the restoration of civilized relations among nations.
The nations can of course agree, in the Security Council, to use coercive force if a vagrant power defies their agreed will, but the fundamental instrument for the prevention of war is the renunciation, by every member nation, of the pursuit of its interests by force rather than agreement. That is Article 2 of the Charter, its most central statement.
Consider what happens, now that the excuses for not talking to anyone are gone for at least a moment, if the law is made the underlying assumption of negotiation between the parties.
Before the law the parties are equal, as they can never be if the underlying assumption is superior military-political power. But does this prejudice the case against the Israelis, who have been protected by their own power and that of the United States? I would argue: not so. The law is there for the protection of both sides. It will protect the rights and vital interests of both Israelis and Palestinians, for both of whom the most pressing real interest is to have a just peace with one another. Nor does the law provide cut-and-dried answers to the questions that stand between them. Instead, it frees the two parties, as equals, to negotiate the realities of the situation before them in good faith.
This will not happen if it is not the express will of the United States. Our country has not distinguished itself by its adherence to international law in recent years, but nothing could be more alien to basic American ideals than to be contemptuous of law. If, under American influence, the rule of law were established as the way for these parties to address their issues, as equals, the example might even be catching.
RAYMOND G. HELMICK, S.J., Instructor in Conflict Resolution at Boston College and Senior Associate, Program in Preventive Diplomacy, Center for Strategic and International Studies, Washington, D.C., is author of Negotiating Outside the Law: Why Camp David Failed.