The Scholars’ Choice

The Peace Palace with flowers in the springtime

The opinions of legal scholars are not that important to the day-to-day work of most American lawyers and judges. In 2007, Judge Jacobs told a crowd of law professors, “I haven’t opened up a law review in years. No one speaks of them. No one relies on them.” And in 2011, Chief Justice Roberts said: “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” That’s hyperbole, of course. There are many great law review articles, and even some truly funny law review articles, like Professor Kerr’s “The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria.” But by and large, I think the judges are right that law review articles just aren’t that useful to the practice of law.

But in public international law, the opinions of scholars can be much more important. Indeed, Article 38 of the statute of the International Court of Justice provides that the Court will apply,

subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

So scholars have a real ability to shape the direction of international law in a way that they may not have, at least in the short run, to shape the direction of domestic law. And that leads to a puzzle.

Consider the Houthis. After October 7, they began indiscriminately attacking shipping in the Red Sea. Here is what a maritime security analyst had to say:

“They are well practiced in creating chaos. This is an opportunity for them to elevate their chaos to a global stage,” he told Lloyd’s List.

“I think we are looking at probably more erratic attacks. Anything they can link either to Israel or to one of Israel’s supporters is fair game for the Houthis.

“And even if they get it wrong, they just do not care.”

One professor of international law has argued that whether states can attack the Houthis as an exercise in self-defense is unclear. I’ll assume that that’s true. As I never tire of saying, I am not an expert in public international law and don’t feel qualified to tell you what the law is.

The Houthis are pirates, enemies of humankind. Given that the law is uncertain, and given that the Houthis are pirates who are attacking American and other warships and also commercial ships, public international lawyers could decide to exercise their skill and ingenuity to argue that states can legally attack the Houthis in order to protect their own warships and commercial ships in the Red Sea. So why do we see both senior and junior scholars arguing against the legality of attacking the pirates? I mean, if the law is not perfectly clear and you have the choice, why choose to argue against attacking the pirates?

Or let’s look at Gaza. After the October 7 atrocities and Israel’s counterattack, scholars of public international law could have chosen to say that the kind of warfare Hamas has been practicing and refining for many years has finally come to fruition. Carry out a devastating surprise attack complete with all the atrocities you can name, and then carry on the fight from within your own civilian population, and even from within protected sites like hospitals. Build tunnels to shelter yourselves but not your people. Prevent your people from fleeing to safety. Keep food and supplies for yourselves while your people go without. And then use the damage that your own strategy has maximized in order to cause the world to pressure your enemy to stop fighting before you’re defeated. A clever path to victory that, at least if the chanting crowds we see in our cities and on our campuses have their way politically, may well succeed.

Whether the law gives Israel a right of self-defense against the attack it suffered is, apparently, unclear. Israel was the victim of the massacre and the recipient of existential threats to continue the murders, kidnappings, and rapes forever. Scholars could have said that international law needs to be interpreted in such a way as to allow it to defend itself effectively and to defeat the obvious immorality, illegality, and threat to humankind groups like Hamas pose. Yet some scholars didn’t do the obvious thing.

Maybe the anti-anti-pirate and the anti-anti-terrorist scholars are really just anti-violence. Violence begets violence, and nothing good can come of the use of violence, no matter what came before. So to the extent we can shape the law, we should push the law towards forbidding the use of force.

Maybe the AAP/AAT scholars have a reflexive preference for the supposedly weak over the allegedly strong. The weak need our help and the strong will get along just fine no matter what we do. So we should push the law so that it benefits the weak in their struggle against the strong as a matter of global justice.

Maybe the AAP/AAT scholars are anti-Western. Our civilization is hopelessly imperialistic and oppressive, and the Houthis and Hamas are brave anti-colonial freedom fighters who should not be constrained by rules put in place by their oppressors, because justice is not the same as the interests of the stronger.

Whatever their reasons, they are making a choice. I suppose we can hope that they are making the choice more in sorrow than in anger rather than with grim satisfaction or even glee,1 but I really am not confident that that is so. And if a civilization’s intelligentsia cannot get its act together to say that yes, it’s okay to attack pirates, even on land in Yemen, after the pirates themselves have attacked and plan to keep attacking, or yes, it’s okay for a state to pursue the terrorists who invaded it and committed mass genocidal atrocities and whose whole war strategy revolves around maximizing casualties on their own side, then whether the civilization has great long-term prospects is pretty unclear.

I am talking here only about the view that neither the Houthis’ attacks nor Hamas attacks give rise to a right of self-defense. To be fair, many or even most scholars do think that the right of self-defense exists in these cases, and they instead focus on how Israel has been exercising the right of self-defense in Gaza. Have its attacks been proportional, that is, is the risk of harms to civilians reasonable in light of the importance of the military objectives being sought? Is Israel trying to discriminate between military and nonmilitary targets in a way that Hamas never does? These seem to be to be more difficult questions, but it is still worth trying to understand the choices of the people who question the right to self-defense in the two situations we’re considering, because I believe that people who take strong views on questions of proportionality in the new kind of warfare that Hamas has perfected are also making such choices.

Photo Credit: Iamthestig (CC BY-SA 3.0)

  1. More in sorrow in anger because they are, perhaps, “just calling balls and strikes,” though that is typically a view of legal judgment held more by the right than the left.

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