Perhaps Israel Should Declare War
- law of nations, which included reasonably clear rules for declaring and conducting war, making peace, and dealing with neutral interlopers. Modern nations have either forgotten that standard, or are choosing to deal with the situation using calculated ambiguities that might make some sense among professional diplomats but which make no sense to the private actors that are an increasingly large part of the picture. They pretend the conflict in the Middle East between Israel and its neighbors is not "war" but something between peace and war, with actors that are somewhere between civilians and nation-states, actions that are somewhere between crimes and acts of war, and "resolution" that is somewhere between keeping order with everyone in place, and ethnic cleansing or extermination of one side by the other.
The "law of nations" (jus gentium) is not really "law" as that term in meant within nations. It is akin to the customary "common law" principles of natural justice that were the practice in England until replacement by statutory codifications, especially in the 18th and 19th centuries. There is no law without a sovereign, a supreme lawmaker, so there can be no law among sovereign nations enforcible by anything except trade sanctions or going to war against infractors. It is to be distinguished from jus inter gentes, or "law among nations", which are international treaties, conventions, and diplomatic conferences. Both are studied under the same heading of "international law" but are really very different in theory.
The law of nations was developed by a number of legal scholars, and imperfectly followed, culminating in several treaties about 1648 called the Peace of Westphalia, involving delegations from about 109 nation-states, mostly in Europe, but not all meeting at the same time in a single plenary session. It established a fairly effective "world order" that prevented most war for 155 years.
The main elements of the law of nations established in 1648 were the following:
- Each nation-state was sovereign within its well-defined borders, and thus could do anything it wanted to its own citizen-subjects.
- Each nation-state has absolute liability for any warlike acts
committed from its territory or by its citizens or flag vessels.
- No nation-state was to go to war with any other without a declaration of war which justified it as either a response to a provocation (casus belli) or a treaty obligation (casus foederis), defined who is the enemy, and perhaps suggests the terms of peace.
- States at war could blockade their enemies and capture or sink any ships, hostile or neutral, that might attempt to run the blockade, with no obligation to save the crews.
- Being in a state of war relieved a state of any obligation to be proportional in its responses to warlike actions by the enemy. It could do whatever was necessary to make sure the enemy would never again pose a threat. The lives of every citizen or inhabitant of an enemy were forfeit.
- The option of proportional responses, represented by letters of marque and
was deprecated, by forbidding their issuance to privateers, leaving
only issuance to official forces. The perhaps unintended result was to
enable any act of war to provoke a total war of extermination, a
possible deterrent but one that made things worse if deterrence failed.
The League of Nations was not intended to displace the Westphalian order so much as to overlay a moderating influence: Nations with a complaint were supposed to take it to that international convention before declaring war, and thus provide an opportunity for other nations to either mediate, intervene, or line up on one side to make the other side back down.
Unbalanced by stronger members such as the United States would have been had it joined, the Axis powers, Germany, Italy, and Japan, left the League and proceeded to engage in expansionist invasions and attacks on then-neutral U.S. shipping, culminating in the attack on Pearl Harbor, demonstrating the poor judgment of picking a fight with a vastly stronger adversary.
Following World War II, the victorious Allies, led by the United States, attempted to resurrect the international convention approach to avoiding war, in the United Nations, again as an overlay on the Westphalian order. However, what seems to have actually worked to avoid war was the nuclear standoff of the Cold War between the Soviet Union and the United States and its allies. The UN became mainly useful in moderating local conflicts that might have escalated into proxy wars or perhaps all the way to thermonuclear Armageddon. The end of the Cold War in 1991 did not end the danger of such a catastrophe, a very Westphalian order in which nuclear attack by any nation can trigger a global war of extermination.
The way all this led to our present situation is that under the deterrence regime the consensus emerged that the way to deter is to be vague about what one's response might be to any given provocation. Keep the enemy guessing. Uncertainty about the response, it was thought, would leave the adversary fearing the worst, and thus have more of a deterrent effect than saying something like "You sink one of our ships, or destroy one of our cities, and we will sink or destroy one of yours." This paradigm carried over into other parts of diplomacy.
It might be said it reached a kind of climax in the "Axis of Evil" speech of President Bush in his 2002 State of the Union speech. He warned of possible attack using weapons of mass destruction (WMD) by one or more of a list of nations he called the "Axis of Evil", or perhaps by private nonstate actors operating from their territories (and later members of his administration added a few more). To a professional diplomat educated in the Newspeak of deterrence, the translation of that should have been chillingly clear: If the U.S. is attacked by a WMD and we can't tell where it came from, we will have to annihilate every one of those nations on the list. That is a very Westphalian position, but one that seems not to have been understood even by many diplomats, much less by national leaders or their citizens. No one believes the U.S. would actually do that, but if a mushroom cloud appears over an American city and no one can determine the source, a genocidal war of extermination would be the only recourse. If that leads to global thermonuclear war, well, our species had a good run but it had to end sometime.
One problem with resurrecting a Westphalian order on the world is that too many countries that pretend to be nation-states have not accepted its terms that they have absolute liability for the actions of anyone operating from their territories. They are only shaky coalitions of tribal groups that may exercise more statelike power on their small neighborhoods than the ostensible national government does. The idea that any of them could be held liable for the actions of any of the others isn't just not accepted, but is almost unthinkable. Much of what can be said to be happening in many of these nations is the imposition of the penalties that come from failure to accept such responsibility, until they are welded into true nation-states with no tribal divisions that matter.
Now, what does this line of reasoning offer to Israel? The obvious action would be to declare war on Gaza. Leaving aside that doing so may not have occurred to them, there would some arguments against doing so. Israel and its allies are at least rhetorically committed to a "two-state solution", meaning a partition of the land into Israel and Palestine, with well-defined secure borders, and with each governed by a government exercising nearly total control over the actions of persons operating from its territory.
The problem is that there are not two potential states in the area. The Palestinians are divided into at least three main factions, Fatah, Hamas, and Hezbollah, the latter two of which reject anything less than ethnic cleansing and extermination of all Jews from the area. Fatah does not exercise effective control over any territory, being mainly confined to the Israeli-occupied West Bank, and Hezbollah is largely scattered through Lebanon and Syria, where they challenge the national sovereignty of those countries. But in Gaza Hamas is functioning like a national government, even if not with the complete consent of all the people who live there.
It would be argued that declaring war on Gaza would be recognizing it as a nation-state. Essentially, yes, although we need to get away from the notion that diplomatic recognition implies acceptance of legitimacy. It mainly means that they are expected to control the actions of people from their territory, and if they don't, the aggrieved party may invade and do whatever it takes to make sure the provocations stop. It means that if the people are being held hostage, they need to realize their lives are forfeit and take control if they don't want to suffer the consequences.
Under a state of war, Israel would declare the land and waters around Gaza a war zone, and forbid anyone to cross without inspection and consent. Anyone contemplating sailing a vessel to Gaza would be on notice that it would be given one warning to surrender and be boarded and inspected, and if it failed to surrender, the vessel would be sunk and no effort would be made to save any survivors. The items that are to be considered contraband would be published, and if any were found, the vessel and its contents would be seized as a prize of war and used or sold. Passengers and crew would be released at the border with no food, water, or shoes. Any that resisted would be shot.
There must be no ambiguity. Whatever rules Israel or other countries might make, those rules must be brutally clear, so there is no room for misunderstanding. The situation is bad enough without letting ambiguity cause avoidable tragedies.
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