a war of words and the law

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    A war of words and the law

    By Ed Morgan
    The National Post
    October 7, 2003

    Legal rhetoric is all the rage among the opponents of Israel's air raid against an Islamic Jihad training base in Syria. Lebanese Prime Minister Rafik Harari was first off the mark, labelling the destruction of the facility a "challenge to international law." He was followed by Damascus University law professor Mohammed Shukri who -- echoing British journalist and perennial Israel critic Robert Fisk -- dubbed the attack "an act of war."

    The Security Council has likewise worked hard to defend the edifice of law on which it imagines itself to rest. France's United Nations Ambassador, Jean-Marc de La Sablière, called Israel's air strike an "unacceptable violation of international law," while Pakistan's Ambassador, Munir Akram, condemned the breach of such legally sacrosanct concepts as Syria's "sovereignty and territorial integrity." Fayssel Mekdad, Syria's Ambassador to the Security Council where Syria is enjoying a two-year stint, accused Israel of "flout[ing] the Charter of the United Nations to the point that Arabs and many people across the globe feel that Israel is above the law."

    As any observer of Canadian constitutional battles can attest, legal argument is an imperfect substitute for action that should take place in the political arena. Nowhere is this more apparent than in international affairs, where law is often called upon to fill the void left by a fractured and inept political scene.

    The most recent example of legal categories overtaking all other forms of analysis is, of course, the long prelude to the war in Iraq. Who can forget the spectacle of heads of state, foreign ministers, and ambassadors dancing on the head of the Resolution 1441 pin, wondering whether Saddam's breaches were "material" enough to warrant the undefined "serious consequences" suggested in a document which gave no guide to action. Academics also entered the fray, with dozens of international law teachers signing a letter to The Times explaining pedantically that Prime Minister Tony Blair's desire to depose a human rights pariah did not jive with a strict reading of the law governing armed attacks and self-defence.

    If the meat hooks hanging in Iraq's police stations didn't convince the international community of the futility of a strictly legal analysis, nothing in the Arab-Israel conflict is likely to accomplish that task. The law appears to be the battleground of choice for nations to wage their rhetorical disputes. It therefore behooves us to move beyond international sloganeering and actually look at the relevant legal doctrine.

    The leading International Court of Justice ruling on the law of war is the 1988 judgment in the Paramilitary Activities in Nicaragua case. The Sandinista government alleged that the Reagan administration's sponsorship of the anti-Sandinista guerrillas, known as the Contras, constituted an invasion-by-proxy of Nicaragua. While the Contras were seen as an indigenous movement of politically disaffected Nicaraguans, the court found that American financing and training effectively made the U.S. complicit in the Contras' violent attacks within Nicaragua.

    The argument levelled by Nicaragua against America is precisely that levelled by Israel against Syria. While Islamic Jihad may be a radical Palestinian movement, it is Syria who finances them, houses their political headquarters and provides training facilities. By the logic of the Nicaragua case, Syria is complicit in the Islamic Jihad attacks and is as culpable as its proxy bombers for the lives lost at Haifa's Maxim restaurant.

    The one defence raised by the Americans against Nicaragua is that they were coming to the aid of their regional ally, Honduras, who shares a lengthy border with Nicaragua and who had suffered numerous Sandinista cross-border raids. In the court's view, however, the American counterattacks were unjustified as the Nicaraguans had done nothing wrong in launching attacks deep within Honduran territory. After all, that was where the Contras were hiding and training.

    Sound familiar? If Nicaragua can defend itself by attacking the Contras at their bases in a neighbouring country, then Israel can do the same with respect to Islamic Jihad and other violent groups. Again, on the logic of the Nicaragua case, Syria has not been legally wronged by this week's air strike since Israel has the legal right to send its armed forces across the border to the very place where the terrorists are hiding and training.

    It may be, as Mr. Bumble says in Charles Dickens' Oliver Twist, that sometimes "the law is an ass." But only in international legal rhetoric do so many players consistently get it ass backwards.

    Ed Morgan is a law professor at the University of Toronto.
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