Law Games
Progressive activists are corrupting the laws of war and putting free nations at increased risk.

Court sketch of Abd al Rahim al Nashiri


Clifford D. May

Two examples that Berkowitz explores in depth: the U.N.’s Goldstone report in 2009, which essentially condemned Israel for defending itself from relentless missile attacks while exonerating Hamas for those attacks; and the Gaza flotilla in 2010, which challenged Israel’s right to prevent weapons from being delivered to terrorists. In both cases, Berkowitz writes, U.N. officials, prominent lawyers, and diplomats put forward specious legal arguments that “threaten not only Israel’s national security interests but also America’s because they work to severely restrict the legitimate use of force by liberal democracies generally.”

The legal case made against the naval blockade rests on the claim that Israel is the “occupying power” in Gaza, a territory administered by Egypt until 1967, when Israel seized it in a defensive war against its Arab neighbors. In 2005, however, the Israelis withdrew all troops from Gaza and dismantled every settlement — they even dug up and moved their graves. They left nothing behind except industrial greenhouses meant to be used by Palestinians to grow fruits and vegetables (and which Palestinian “protesters” immediately trashed). Yet according to such activists as Noura Erakat, adjunct professor of international human-rights law at Georgetown University, Israel remains the “occupying power” in Gaza to this day. By what logic? She argues that Israel has “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.”

Based on this criterion, Berkowitz points out, the U.S. occupies both Canada and Mexico, Egypt is the occupier of Libya, and Russia occupies Latvia. Erakat also chooses to ignore long established principles of international law that would undermine her assertions. Among them: For a territory to be considered occupied, the occupier must exercise “effective control” in that territory, and the enemy forces there must have surrendered. But Hamas, not Israel, is the ruling power in Gaza. And far from surrendering, Hamas continues to fight, launching missiles against Israeli towns, sending terrorists into Israel to stage attacks and kidnappings, and vowing to defeat Israel and exterminate Israelis.

It is inevitable, Berkowitz argues, that the discriminatory standard being applied to Israel will be applied to America and other nations attempting to defend themselves from terrorism. That is already happening: Brody’s appeal in behalf of Nashiri is only the most recent of many examples that could be cited.

If these efforts are successful, whatever progress has been made to reduce the brutality of war will be reversed. The integrity of international law itself will be undermined. All this ought to be both obvious and alarming. Which raises another question: What motivates Brody and other activists to want to take us down this road?

— Clifford D. May is president of the Foundation for Defense of Democracies, a policy institute focusing on national security and foreign policy.


Sign up for free NRO e-mails today:

NRO Polls on LockerDome

Subscribe to National Review