Does Lawyerization Of War Cause Defeat?

There is a growing imposition upon or bending by military and political leaders to supposed international law norms. Meanwhile, there is every evidence this isn’t the case for the West’s terrorist enemies.

Are we tying one hand behind our back? Need we? Can this increase the possibilities of the West losing in armed conflicts?

Last Tuesday, there was a debate in Israel between a leading Israeli proponent of the superior position of international law over national security concerns versus a leading American legal expert who disagrees. Caroline Glick’s summary of the debate follows, which she titles “The triumph of legal defeatism.”

The rest of Glick’s column reveals the previously secret Winograd Commission testimony of the extent to which such lawyerization of Israel’s actions in last year’s second Lebanon war may have contributed to Israel’s poor performance. Read it.

This debate is directly and dangerously applicable to the United States.

THE SAME day Mazuz's and Mandelblit's testimonies were released a debate took place at the Hebrew University where the legal establishment's embrace of the role of protector of enemy populations came under assault. The debate, sponsored by the Shasha Center for Strategic Studies, was titled "Can Democracy Overcome Terror?"

There, retired Supreme Court president Justice Aharon Barak, who founded this view, was pitted against Judge Richard Posner, from the US Court of Appeals in Chicago. It was a fair match. For the American legal community, Posner's intellectual standing is equal to Barak's in Israel.

Quoting extensively from his own judgments, Barak explained his view that the duty of a judge is to protect democracy. Barak defined this role as protecting human rights, justice and fairness.

In his view, there is a constant tension between human rights and a state's security considerations. The fact that judges in Israel are not elected insulates them from public sentiment, which Barak noted is nearly unanimous in times of terror and war. Barak asserted that no distinction should be made between human rights in wartime and human rights in peacetime. If restrictions are placed on human rights in wartime, he warned, they will serve as dangerous precedents in peacetime.

Moreover, Barak explained that judges must intervene in real time in executive and military decisions even when those decisions are reasonable. As defenders of human rights, judges, he claimed, are better situated than politicians and military commanders to distinguish right from wrong.

Posner disputed all of Barak's positions. He argued that judges have no special expertise to determine norms and values. In his words, "I try to avoid using words like justice, fairness and human rights. I don't like these words because they are empty and used as substitutes for grappling with hard realities." Given their ignorance of military affairs, judges should be modest in their judgments.

Posner also objected to Barak's description of democracy. Democracy, he explained, is simply the rule of the majority. And judges limit democracy by checking the actions of the elected legislative and executive branches in government. They, in turn, protect democracy by checking the actions and limiting the scope of judicial oversight. Unlimited judicial independence, Posner argued, is tantamount to the overthrow of democracy in favor of judicial tyranny.

Then too, Posner rejected Barak's distinction between security considerations and human rights. The most basic human right, he argued, is the right to security - which is a collective right. And since security is a human right, it cannot be weighed against other human rights.

Finally, Posner strongly disputed Barak's assertion that limitations of rights during wartime impact those rights in peacetime. Citing example after example from American history, Posner demonstrated that limitations placed on rights in times of war were abrogated when the wars ended and never served as peacetime precedents.