I found a discussion from last month featuring Justice Stephen Breyer--along with Dr. Hina Jilani and Beverly McLachlin, Chief Just of the Supreme Court of Canada and Gregory Craig, White House Counsel of President Obama.
You can view the video of the discussion: Law vs. Power: Who Rules? Who Makes the Rules? or download a transcript in PDF.
At one point during the discussion, Justice Breyer makes the point:
My friend Aharon Baraq, the Chief Justice of Israel takes that second approach and that approach in the sentence is the law has to work out. You cannot impose unrealistic conditions on the generals. But be careful. You're there to protect the individual rights and that's what he tries to do and its popular with nobody. But if you take that second position which I think is the right one then when I hear today the lawyers are being obstacles to sensible policy with privacy. Piracy, sorry. I don't worry about privacy. I worry about piracy. But you see that's wrong. There's something wrong there. There's a disconnect. And the people who are writing these rules and regulations which are everywhere in the world have to understand what the actual security problems are so that they can protect the individual without hurt turning our constitution into a suicide pact. That's the problem.You give us the answer. [emphasis added]It is interesting that Breyer, who favors the use of International Law when deciding cases, does not favor its use indiscriminately.
While Breyer addresses the issues raised by Operation Cast Lead indirectly, Dr. Jilani addresses the issue more directly:
Let me begin by saying there is absolutely no question in my mind that there is a framework that guides you to make decisions when you are conducting hostilities. And that framework very clearly lays down what is the principle of discrimination and what is the principle of proportionality between a military objective and the duty to protect civilians. In the context of what we are being told today that there is more asymmetrical warfare and it becomes difficult to make decisions or to draw guidance from international humanitarian law or from general the laws of war.Actually, the framework is not very clear, as Lionel Beehner writes in Israel and the Doctrine of Proportionality:
experts say the proportionality principle is open to interpretation and depends on the context. "It's always a subjective test," says Michael Newton, associate clinical professor of law at Vanderbilt University Law School.And a Brandeis report on proportionality points out
There is much controversy over what proportionality means on the ground. Does it entail proportional amounts of force? Proportional objectives? Proportional amounts of lives lost?The same report refers to Dr. Michael Walzer of the Princeton Institute for Advanced Study:
One of the principles of just war theory, he reminds us, is that warfare cannot be made “morally impossible.”One can make a similar claim about self-defense against terrorists as well.
You know I just want to make one give you one example. A few years ago I was on mission toIsrael and one of my questions to some of the people there, legislators, lawyers, even judges, was about the practices of the occupation. And the answer I repeatedly got from them was "well occupation is not illegal." That's true. But at the same time there are laws that govern how an occupying power has to conduct itself and what responsibilities it has, not only towards the occupied territory but also towards the people in the occupied territory. On the other hand, I had the opportunity of talking to some of the armed groups, the Palestinian armed groups [INAUDIBLE ] The question with regard to their own violation of humanitarian law. And the answer I got from them was "we have a legitimate right to resist." So I give you that example to show you that everybody has their justification when they know that they violated the law yet if you look at the law that very clearly tells them what they're supposed to do.
Again, Jilani is very big on clarity--but there is a difference between clarity and being simplistic.
In her search for clarity, Dr. Jilani refers to "occupation" and "Palestinian armed groups" as if those very key issues were 'very clear' and not open to debate.
So don’t I mean, I refuse to be confused by those arguments. I'm very clear. I have looked at the law myself. I know these laws are capable of being applied to situations that we are watching now. There are some problems certainly where non state actors are involved.The question of responsibility is not moot but the question of enforceability is still an area which has to be more clearly determined. We have very imminent jurists here and I'm sure that they would agree with me that a lot of the problems that we face every day in terms of shortcomings of the law are rarely taken care of by the interpretation and proper and appropriate application of the law. I think that exercise needs to be done.
Well, at least she finally does admit some doubt...
Technorati Tag: Goldstone Report and Dr. Hina Jilani.
It's very easy to say there is nothing there and you can't see it but you've got to look for it. As a human rights lawyer and a human rights defender I have very few tools in my hands. But I can't tell somebody who comes with a problem to me, like for instance a woman has a problem because women's human rights are generally not as much recognized in most jurisdictions as they should. I can't tell her to wait for us to be successful. I have to look at the law and find whatever I can for her benefit and apply it. And this is how we have been able to get landmark decisions from all jurisdictions around the world.And it is that last statement which explains her pre-determined attitude in Gaza, where Dr. Jilani defended her full acceptance of Palestinian testimony on the grounds that
I think it'd be very cruel to not give credence to their voices.I don't know--some might think it very cruel to force a suicide pact upon Israel.
Technorati Tag: Goldstone Report and Dr. Hina Jilani.