Spencer Ackerman has a fascinating piece out at the Washington Independent exploring the creation of a new Office for the Rule of Law and International Humanitarian Policy inside the Pentagon. This is the kind of thing that I think I ought to be cynical about since fundamentally international humanitarian law is about constraining what the Pentagon can do, and offices inside the Pentagon are about expanding what the Pentagon can do. But I’m having a bit of trouble staying appropriately cynical, since the office is apparently set to be headed by Rosa Brooks whose work I used to read very regularly before she joined the Obama administration and who I think is basically great.

I suppose it’ll probably only make trouble for her to bring up some of her better recent columns, but February 5 2009 on Afghanistan was good. In January of that year she had a trenchant piece on Gaza. I thought this was a fair take on the merits of prosecuting Bush administration policymakers. Basically, I’m a fan.

But what’s the office going to do? Ackerman reports:

Many of the office’s emerging responsibilities will center on entrenching respect for the rule of law and human rights as a core focus within the Defense Department. Previously, Pentagon officials who worked on those issues were spread throughout the policy directorate, in bureaus as disparate as Counternarcotics and Detainee Affairs, a reflection of the secondary — Brooks called it “ad hoc” — treatment the department has traditionally provided to humanitarian concerns. Karen Greenberg, the director of New York University’s Center on Law and Security, said the office needs to “restore the notion that the rule of law is there on the table no matter what.” Matthew Waxman, a deputy assistant secretary of defense for detainee affairs at the end of the Bush administration, added that “sometimes important strategic issues can fall into bureaucratic seams, and redrawing parts of the organizational map can help address that.”

As I said at the top, I think there’s ample reason for skepticism that this is really a big deal, but at a minimum it’s a move in the right direction.

The Israeli newspaper Yedioth Aronoth has done some digging into Richard Goldstone’s past as a judge in apartheid-era South Africa and found him in some bad-looking situations as an enforcer of the country’s then-extant immoral laws. Given that an awful lot of people were in morally compromising situations at that point, and that the leadership of the African National Congress has always seemed to regard Goldstone as a credible jurist I’m inclined to give him a pass. But I see that defenders of the rights of black South Africans as Jonathan Chait and Jeffrey Goldberg are inclined to take a darker view of things than am I or Nelson Mandela.

At some point, though, critics of Goldstone’s work on the Gaza War are going to have to face the fact that whether or not they like what he’s said on this subject it’s just not the case that Israel’s been the victim of a frameup by white supremacists. For example, I take it that nobody is going to question the anti-apartheid credentials of Desmond Tutu and I don’t think Chait is going to endorse this or this or much anything else he’s had to say on the subject.

I posit that people who don’t like the Goldstone Report ought to actually think harder about international humanitarian law. The American right has a longstanding complaint on this score that international humanitarian law’s even-handed nature constitutes de facto unfair treatment of “the good guys.” Their point of view is that, in essence, you ought to look at a conflict, identify who the bad guys is (the Taliban rather than the US, Hamas rather than Israel), and focus your ire on the bad guy instead of nitpicking at the good guy’s conduct. Hawkish Arabs also join in this critique, though of course in their view it’s Israel who’s in the “bad guy” role. Personally, I don’t find this critique persuasive and I believe in international humanitarian law—just like Human Rights Watch does and Desmond Tutu does and Richard Goldstone does, which is why these organizations find themselves in the position of criticizing both Israeli and Palestinian conduct.

If you ask me, it would be much more plausible if people with liberal views on domestic policy and conservative ones on foreign policy would just join in the overall conservative critique. Instead, a lot of these people have tried to work out a not-so-plausible alternative view in which international humanitarian law is a good thing, but Israel just so happens to continually be victimized by sundry biased and/or unsavory figures. The simple fact of the matter is that adhering to international humanitarian law makes it very difficult to wage war, which I think is a good thing but many people disagree with that. This is an important debate, but it actually has nothing to do with anti-Israel bias or Goldstone’s alleged status as an amoral comformist.

Yesterday I was looking in my inbox at a statement from Joe Lieberman on the idea of trying KSM in a civilian court in New York, and I found myself surprisingly sympathetic to his first sentence: “The terrorists who planned, participated in, and aided the September 11, 2001 attacks are war criminals, not common criminals.” Then, of course, Lieberman winds up veering in the direction of saying that we need to try KSM in some special kangaroo court military commission.

But really if the United States were willing to some day come to its senses and join the International Criminal Court it seems to me that this would be a good venue in which to prosecute major international terrorists. Barring that, I think a regular criminal court will do. But part of working toward a long-term solution to the issue of safe havens ought to be a formal process by which an individual can be declared an international outlaw who all governments have a responsibility to apprehend and hand over for trial to an international court.

Since Human Rights Watch’s work in the Middle East and North Africa is driven by the organization’s anti-Israel agenda, clearly this letter urging Hamas leadership to take seriously the allegations made against their group in the Goldstone Report and to implement Goldstone’s recommendations can’t actually have happened. For that matter, since Goldstone himself was part of the very same vast anti-Israel agenda his own report can’t possibly have said that stuff.

That said, if we pretend that HRW really did issue the statement posted on their website, it highlights an interesting dynamic. Clearly, in the real world Hamas is not an organization that’s interested in human rights or the laws of war. But if you read the article you can see that Hamas is at least an organization that’s interested in pretending to be interested in these things and gets into a dialogue with human rights groups:

Prior to the vote, a Hamas Foreign Ministry adviser, Ahmad Yusuf, had said that Hamas “will try to do our best” to investigate rocket attacks against Israeli population centers. Yusuf also claimed that Hamas had only intended its rocket attacks to hit Israeli “military targets,” rather than Israeli civilians, and that “maybe some of these rockets missed their targets” because they were “primitive weapons.”

That’s pretty transparently nonsense:

In its letter to Haniya, Human Rights Watch recalled repeated statements by Hamas officials and fighters indicating an intent to direct the rockets toward civilian targets and asked Hamas to clarify its stance on the issue. A June 11, 2006 statement from the Izz el-Din al-Qassam Brigades, the Hamas armed wing, for example, said that in response to an Israeli attack that targeted Palestinian fighters, the group had carried out a rocket attack against the Israeli town of Sderot and would continue attacking Sderot “until its residents flee in horror. We will turn Sderot into a ghost town.”

The point here is that Hamas seems to believe that its own legitimacy and interests can, in fact, be damaged by the perception that it is violating the laws of war and attracting the disapproval of human rights monitors. What’s more, Hamas is clearly very interested in pressing human rights claims against Israel. But that, of course, opens them up to pressure to acknowledge the criticisms of their own conduct being made by those very same group. HRW grew out of the Helsinki Watch concept, which was aimed at holding the Communist Bloc to account for violations of agreements they had plainly signed in bad faith. At the time, that was regarded by many as a futile and pointless task, but in retrospect most people now acknowledge that their work was important and effective.

Human Rights Watch’s anti-Sinhalese agenda once again on display:

A US State Department report on possible violations of the laws of war in Sri Lanka made public on October 22, 2009 shows the need for an independent international investigation, Human Rights Watch said today. The report details violations of the laws of war committed by both government forces and the separatist Liberation Tigers of Tamil Eelam (LTTE) from January through May 2009.

“The US State Department report should dispel any doubts that serious abuses were committed during the conflict’s final months,” said Brad Adams, Asia director at Human Rights Watch. “Given Sri Lanka’s complete failure to investigate possible war crimes, the only hope for justice is an independent, international investigation.”

Note how they cleverly mask their partisan, one-sided agenda behind a pretense of criticizing both sides in a fair-minded way. Very insidious.

This is really maddening. I wrote here that irrespective of how bad Hamas or Hezbollah may be Israel has an obligation to abide by international humanitarian law and that Human Rights Watch is correct to highlight credible allegations of violations of international humanitarian law. In response, Commentary’s Noah Pollak attributed to me a whole range of improbable-sounding and vile beliefs, so which I simply reiterated the point that irrespective of how bad Hamas or Hezbollah may be, Israel has an obligation to abide by international humanitarian law. I noted that many credible allegations had been raised of such violations and included a link to a B’Tselem report to that effect.

Pollack “responds” to my post with the observation that B’Tselem is critical of the UN Human Rights Council and also has some disagreements with the Goldstone report. But so what? I never mentioned the UNHRC. I’ll add that Richard Goldstone himself has criticized the UN Human Rights Council’s handling of his report. We can all agree—me, Pollack, Goldstone, B’Tselem, etc.—that the UNHRC’s record on Israel is not a good one*.

That said, I’ll circle back around to the point: Israel has obligations under international humanitarian law and human rights norms, obligations that it appears to have violated, and these obligations stand regardless of crimes on the part of Hamas. This observation has prompted a lot of ad hominem attacks, and a lot of smokescreens and huffy rhetoric, but basically nothing in the way of substantive defense.

I note that the argument has nothing in particular to do with Israel. When it comes to the United States of America, liberals generally think the US has human rights obligations and obligations under international humanitarian law. We think that part of being “the good guys” on the world stage is that we are obliged to do the right thing even if our adversaries don’t. Conservatives disagree with this—they think starting wars and brutalizing detainees, for example, are good ideas—and see human rights as basically a concept that should be opportunistically deployed for geopolitical advantage, and then cast aside the first time you want to start copying Chinese torture manuals. But American liberals who think the US should abide by human rights norms aren’t “anti-American.” Nor are American Jews who think Israel should abide by human rights norms “anti-Israel.”

It’s certainly news that Human Rights Watch’s critics were able to get a former HRW chairman to slam the organization for having the temerity to hold Israel to the same standards of international humanitarian law to which it holds every other country. But Bernstein doesn’t appear to have any arguments to make that any of the instances of human rights violations HRW has documented didn’t take place. Instead his view is basically that Israel ought to be exempt from criticism because its enemies are mean:

Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields. These groups are supported by the government of Iran, which has openly declared its intention not just to destroy Israel but to murder Jews everywhere. This incitement to genocide is a violation of the Convention on the Prevention and Punishment of the Crime of Genocide. [...]

The organization is expressly concerned mainly with how wars are fought, not with motivations. To be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.

For one thing, The New York Times really shouldn’t publish op-eds stating that “the government of Iran . . . has openly declared its intention . . . to murder Jews everywhere.” There are Jews in Iran, unmurdered, subject to the same repressive dictatorship as Iran’s Muslims, with its abuses duly cataloged and condemned by Human Rights Watch.

The argument in the second graf I quote is, huffing and puffing aside, all there is to Bernstein’s argument. He thinks that Hamas and Hezbollah “started it” and Israel is acting in self-defense, and that countries acting in self-defense should generally be exempted from international humanitarian law and human rights norms. This is a thesis a lot of people seem eager to embrace in the specific case of Israel, but few people seem prepared to defend as a general proposition or to apply as a general matter. People don’t defend it as a general proposition because it’s not defensible. For one thing, this just isn’t what international humanitarian law says. Just war theory has always recognized specific ethical obligations of combatants that are unrelated to the justice of their cause, and international humanitarian law does the same. After all, subjectivizing the obligations of combatants in the way Bernstein proposes would drain the standards of all force. All participants in all wars think that they’re the good guys and the enemy is the bad guys.

It’s the existence of independent standards that lets us say that it’s wrong and illegal of Hamas to lob rockets at Israeli towns, and to try to build a consensus around that point that’s independent of people’s views on all the different twists and turns of the Israeli-Arab conflict. But by the very same token Israel’s obligation to minimize civilians’ exposure to harm also exists independently of people’s views on all the different twists and turns of the Israeli-Arab conflict. To relativize combatants obligations to the merits of their underlying position would just reduce human rights and humanitarian law to politics, with everyone saying all their conduct was justified by the justice of their cause.

If people want to say that the whole quest to articulate objective human rights standards and international humanitarian law is inherently futile or misguided, then fine. But an awful lot of people who claim not to believe that seem to want to turn around and reject the underlying premises of the endeavor when it turns out that Israel—like its adversaries—sometimes violates those standards.

The Obama administration’s stated desire to get the world on track to eventual total worldwide nuclear disarmament starts in practice at the only place it really could start—the quest for a new bilateral U.S.-Russia treaty on bilateral weapons reductions. The Russians want such a treaty because in the short-term maintaining the U.S.-Russia nuclear equilibrium at a high level is a bigger burden on (relatively poor) Russia’s budget than on our budget. But the high equilibrium is a waste of our dollars as well, and it’s strongly in America’s interest to reduce nuclear proliferation as a general matter. But a lot of members of congress are queasy about the idea of a new treaty, basically because they’d rather listen to crazy people like Charles Krauthammer than see the basic logic of a win-win deal.

Josh Rogin reports on some of the negotiations with congress:

Senate Republicans are not completely unwilling to get behind a new nuclear reduction treaty, but they intend to bargain for concessions before supporting ratification. One key concession they will not get, though, is a revival of the Bush administration’s plan to build a new class of nuclear warheads known as the Reliable Replacement Warhead, according to the State Department’s top arms control official.

“I think there are a lot of people that still hope for the return of RRW and they are going to be sadly disappointed,” Ellen O. Tauscher, the newly minted under secretary of state for arms control and international secretary told The Cable in her first interview after taking up her post.

The RRW concept has some benefits if looked at very narrowly, but it’s by no means necessary to American security and would undermine the larger nuclear strategy toward which the administration is trying to move. Reviving the multilateral nuclear non-proliferation regime requires the United States to regain the confidence of non-nuclear states by demonstrating our own commitment to play by the rules. That means not developing new generations of nuclear weapons and instead moving forward on bilateral talks with the Russians. Press reports have repeatedly indicated that the Obama administration is divided on the RWW issue (with Robert Gates, in particular, being a fan) so it’s good to see a clear statement that they intend to stay on the right side of this.

Judge Richard Goldstone

Not really unexpected, but good to have on record:

The UN Fact-Finding Mission led by Justice Richard Goldstone on Tuesday released its long-awaited report on the Gaza conflict, in which it concluded there is evidence indicating serious violations of international human rights and humanitarian law were committed by Israel during the Gaza conflict, and that Israel committed actions amounting to war crimes, and possibly crimes against humanity.

The report also concludes there is also evidence that Palestinian armed groups committed war crimes, as well as possibly crimes against humanity, in their repeated launching of rockets and mortars into Southern Israel.

Presumably Judge Goldstone issued these findings motivated by his racist attitudes toward Jewish people, and threw in the stuff about Palestinians in an effort to cloud over his true agenda with false even-handedness.