Reply #82: It Is True Enough, Ma'am

[The Magistrate]

That international law is fairly weak on enforcement. It is, as a practical matter, enforced on the weak and on the defeated, and that sporadically. There are tribunals for the Balkans and Rwanda; none for Indonesia or Nigeria: the SS stood in the dock, and the NKVD handled half the prosecution. The idea that law regarding the relation and conduct of states would ever be enforced by anything other than a powerful state, and that only as it served its interests, is certainly a new one, and international law will always depend on the willingness of powerful states to enforce whatever a court a may decree, whether on others or upon themselves.

The idea that law should regulate the relation and conduct of states is, however, a good one. The twentieth century may stand as a decent illustration of the dangers and horrors the absence of such a system fosters. The codes of law in place, though mostly without any regular mechanism for enforcement against those who choose to disregard them, are good codes, that in the hands of impartial jurists would produce beneficial results. There is something to be said for the promulgation of a proper code of behavior, and cultivating a feeling that it ought to serve as the guide for action. In civil life, law is obeyed in fact more through a sense there is a duty to be law-abiding incumbent on a citizen than it is through a practical fear of consequences for breaking it: indeed, the great secret of criminal life, what seperates the criminal from the rest, is the knowledge rooted in experience that most breaches of law will not be punished, and the great fact of civil society is that if even a sizeable minority simultaneously disregards the law, there is no means to vindicate it against their number, and all order collapses like a house of cards.

The real value of international law at this point is that its statutes do constitute a more or less neutral and objective standard against which actions can be measured. One can look at the actions of parties to a conflict, and assess whether they conform to this standard or do not, and regard the actors as law-abiding or criminal in consequence. In my view, Israel comes out pretty well on this score, and certainly better than its adversaries. Matters of killing and bodily harm are of far greater weight than matters of property, and in the exercise of violence, Israel is far more law-abiding than its opponents: the overwhelming preponderance of the violence aimed at Israel has been explicitly aimed at killing non-combatants, the nearest to a sustainable charge against Israel is that it is not always as careful as it should be in engaging combatants; Israel's wars have been in legitimate defense against aggression, with the exception of the Suez venture, and the latter stages of the first invasion of Lebanon.

The use of law as a mere rhetorical club and propagandist's device is something we clearly both deplore. No partisan of one side has the slightest right to invoke law against the behavior of his or her opponent unless also willing to apply law with equal strictness to the behavior of the side he or she supports. Just about every routine propagandist's cry of "war crimes" against Israel founders on this principle, but so does a good deal of propagandizing on behalf of Isarel founder on it. In speaking on this matter, it has always been my endeavor to measure the acts of all participants to the same standard, which is my understanding of what the relevant law is.

To engage the speculations on the nature and development of morality you have put forth takes us somewhat far afield, and we will doubtless continue in much disagreement. My difficulty with your view is not owing to maintaining a view that there is no such thing as morality, or that it is not an important element of societies and cultures, or that it is some un-natural veneer. It is that standards of morality, and their underpinnings and internal logics, vary so greatly among people, both as cultures and among individuals, that there is no good reason to assume any two people mean the same thing by "this is right" or "this is wrong". It is quite possible for a person to do something that to him is the highest moral duty he knows, and for me is grounds to shoot a man through the head and bill his family for the bullet. When two groups are engaged in hostilities, the chances that something like this is the case are much higher than average, and the possibility that they can be brought to agreement on what is morally right and morally wrong is too small to mention. The problem is compounded by a peculiarity of moral thought, which is the conviction shared by almost everyone who subscribes to a moral system that it is the right moral system, and those moral systems that do not match up with it are wrong wherever they vary from it. Many carry this a further step, and concieve it their duty to impose their correct morality on those afflicted by a wrong morality, with or without their consent, and often even go farther and seek to require the abjuring by others of their moral system in favor of assent to the one they adhere to. Persons convinced they are absolutely in the right have in my view done far more harm down the ages than persons out for plunder and pleasure: the wicked may be satiated, the righteous cannot rest. All of this inclines me to make few appeals to morality, and consider most appeals to it pretty dubious.

My mention of religion, though, was not a side issue. Being myself about as irreligious as they come, it is certainly not my view that morality and religion are connected, but that view is one literally billions of people do not share, and the view held by many that the highest moral duty is living in accordance with the religion they profess, and performing as its dictates direct them to, cannot be waved out of existence, certainly not if one wishes to understand and calculate and predict their behavior in likely circumstances. My life has included some unlikely encounters, and on several occassions people have told me with a seriousness and sincerity that appalled me what they were certain was their moral duty in accordance with the dictates of their religious convictions. One of the misfortunes of the conflict we are, at bottom, discussing here, is that such people can be found on both sides of it, and what they conceive as their moral duties in regard to it are absolutely incompatible.