This will be my last essay on law and the Israeli-Palestinian conflict. In it, I will attempt to do three things: Restate the importance of law in framing American policy; critique some wooly thinking by Michael Lame; and ponder the relevance of Henry David Thoreau to our subject. International Humanitarian Law (IHL, or the law of war) was never meant to be a substitute for diplomacy or power politics. It is a source of moral standards, based on hard and ugly history. It pays dividends if invested in. Optimally, it prevents the worst inhumanities of war and occupation and provides mechanisms for punishing violations of universally accepted norms of behavior. At a minimum, states which aspire to lead the world community should adhere to and espouse the standards of the Hague Regulations and Geneva Conventions, and should lead the effort to keep them current and effective. America, which took a leading role in achieving the conventions and puts itself forward as a champion of the rule of law, suffers real damage to its “soft power,†its persuasiveness as a leader, when it abandons the law or incorporates it selectively into policy. Moreover, the standards of IHL usually point the way to policy that advances American interests. Here, adherence to IHL provides a way to be credible throughout the region, and to increase the chances of a stable negotiated peace. For peace to be sustainable, both populations have to believe that they have achieved arrangements that are both secure and just. Negotiations based upon power alone will fail to achieve that goal, for several reasons. Once a population has achieved nationhood, it will not tolerate terms that amount to continued subjugation. Terms that deviate from a literal application of the law (as to the right of return, for example), may suffice, but not terms based on a denial of the law and the sense of justice that it carries. Both sides have violated past agreements, but most Israelis think they can tolerate the absence of mutually-agreed peace, and are prepared to cede wide authority to leaders who promise quietude by other means. Palestinians, the much weaker party, have seen Israel ignore IHL and breach the Oslo agreements, and need some reason to trust that Israel will honor a new deal. Respect for the law by the U.S. as a guarantor of any negotiated agreement would provide added basis for confidence. Michael Lame provides distinctly “inside-the-box†analysis. His arguments have two related themes: To leave all of Israel’s power advantages intact; and to discredit or eliminate any source of constraint on Israel’s complete freedom of action. That is: Let’s try what we’ve been doing for 43 years, and hope for a different result. Some examples of this unhelpful thinking: Appealing to Israelis’ moral conscience will not be any more effective than calling for them to respect treaties they are bound by. Israelis do not take kindly to lectures on morality, and have consistently rebuked their co-religionists when American Jews have sought to counsel them. Effective moral suasion would have to come from fellow Israelis, and we have recently seen the Israeli Right move to curtail the activities of Israeli human rights and peace movement NGOs. Michael Lame is correct that IHL will not itself stop settlements or remove roadblocks. But American policy that incorporates IHL principles, and sets expectations for the parties accordingly, can provide incentives for both sides to proceed more confidently. If the president made clear that settlements deemed illegal (or “illegitimateâ€) would not be recognized as changing facts relevant to final status, that all U.S. funding that found its way to them would be stopped, and that no compensation would be forthcoming to deconstruct those that had to be abandoned, that would send a powerful message. Israelis might reconsider whether it was wise to let religious ideologues and Greater Israel advocates define their future. Michael Lame argues that “leveling the playing field†is futile because it ignores “the reality outside the negotiating room.†But the U.S. is a major shaper of that reality, and we have enabled Israel to tilt the field entirely to its advantage, in large part by ignoring the IHL it should be bound by. Incredibly, Michael Lame lists the threat of a violent third intifada among the Palestinians’ “bargaining strengths.†That is a tacit admission that, if no external norms are applicable and the relative power of the two societies is the measure of feasible negotiating results, the Palestinians are lost. As in the story of Athens and Melos, the strong will do what they can and the weak will do what they must. For the Melians that meant death and enslavement, whereas here it will mean pain for everybody and slow suicide by Israel as a Jewish state. One of Michael Lame’s more interesting choices was to begin his last essay with a quote from Thoreau’s Civil Disobedience. Thoreau was elitist, anarchist and anti-democratic, but he wrote in powerful epigrams about the duty of the individual citizen to weigh the justice of a law before deciding to obey it. (He served one night in jail for refusing to pay poll taxes, and was reportedly upset that his aunt sprung him by paying the taxes). Thoreau inspired Mahatma Gandhi, Martin Luther King, Jr, and Martin Buber in their formulations of the citizen’s duty conscientiously to object to unjust laws and administrations. It may be that he also inspired Mubarak Awad, the American-trained academic who sought to teach Gandhian methods to Palestinians at the time of the first intifada, before he was hastily deported by Israel. Thoreau paid road taxes, but refused to pay taxes that would support policies he thought immoral or unjust, since that would make him “the agent of injustice.†Such policies included slavery and the war in Mexico. The analogues of such policies in the current Middle East are the occupation, the brutal siege of Gaza and military incursions such as Cast Lead. One cannot re-read Thoreau without realizing that he would be calling for Israelis to refuse to pay taxes that supported such policies, and for Palestinians and others to engage in nonviolent resistance to them. Perhaps if enough people did those things, it would make a difference. It would make even more of a difference, however, if the United States, the treasurer, armorer, political protector and enabler of Israel, would join its support for the security of Israel with a steadfast respect for the law. **This article originally appeared on www.rethinkme.com BM
