Law & War: A Comparison of Vietnam and Palestine/Israel

TRANSCEND MEMBERS, 28 Aug 2023

Richard Falk | Global Justice in the 21st Century – TRANSCEND Media Service

26 Aug 2023 – The text below is my foreword to an exceptionally valuable comparison of conflicts: Vietnam and Arab-Israeli. These two regions have preoccupied me throughout my professional career and in the course of my life as an engaged citizen. The book, just published by Michigan University Press, is the source of insight as well to the evolution of international law relative to such conflicts.

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Making Endless War: The Vietnam and Arab-Israeli Conflicts in the History of International Law, Brian Cuddy and Victor Kattan, Editors, 2023

How International Law Evolves: Norms, Precedents, and Geopolitics

Prologue

We should understand that this volume devoted to the relevance of international law to these two geographically distinct war zones in the Middle East and Southeast Asia in the period after World War II is a very distinctive undertaking. I am not familiar with any similar search for comparisons and connections, either in relation to the Indochina or Arab-Israeli conflicts, with respect to lawmaking interactions and potentialities. What is notable about this inquiry is that it considers the interaction between regional scale conflicts to be both a source of new norms of international law and occasions for evasions and justifications of existing norms.

My point of departure is to take note of the motivation of the lead political actors in both conflict configurations to evade the constraints on the use of force imposed by the UN Charter, a constitutional framework for international law drafted under the primary influence of World War II, achieving a special urgency after the use of atomic bombs against Japanese cities. This influence expressed itself by the adoption of a war prevention rationale powerfully set forth in the opening words of the Charter Preamble, “…to save succeeding generations from the scourge of war.” This language was a response not only to the devastation associated with the thus concluded war with its 60 million deaths, but to the fear that a future war of similar or greater proportions would bring even more catastrophic results for the entire world. The Charter norms on the use of force were designed to be very constraining, suggesting that recourse to force by states was to be legal only if undertaken in self-defense against a prior armed attack [Articles 2(4), 51 of the UN Charter] or in response to a decision authorizing the use of force by the Security Council. As the editors’ introduction to the volume suggests, the Charter carried forward the transformational ambitions to prohibit international war-making and coercive diplomacy by constraining legally mandated recourses to international uses of force as comprehensibly as possible. It should be understood that these ambitions were always tied to the self-restraint of and harmony among the five permanent members of the Security Council who enjoyed a right of veto, which effectively exempted them from an obligatory connection to the international legal norms governing force set forth in the Charter. Even if the General Assembly attempted to fill this gap between international law and this disturbing geopolitical privilege its authority was constitutionally limited to making ‘recommendations,’ lacking in obligatory force.

The geopolitical condition of fragile and always partial harmony that prevailed in 1945 as a result of the recent victory over fascism achieved by the Allied Powers did not last very long. The UN was established with some hope, although contested by political realists from its inception, that the combination of these restraining norms and the collective security mechanisms of the Security Council could ensure a peaceful world. Such idealistic expectations were challenged by events. First came the Korean War (1950-53) and then by the 1956 Suez Crisis and Operation, and above all by the outbreak of the Cold War that ruptured forever the pious hope a wartime alliance could be transformed into a peacemaking coalition. Nevertheless, until the decade of the 1960s there remained a superficial attachment by the geopolitical antagonists to the UN Charter framework constraining aggressive war-making as the focus continued to be on the avoidance of a third world war or any disregard of the taboo prohibiting recourse to nuclear weaponry.

This changed in the decade of the 1960s. It became clear that the victors in World War II were faced with significant geopolitical challenges and possessed strategic ambitions that could not be satisfied by adhering to the Charter norms. This was made apparent in the Indochina War, especially its Vietnam central arena. The Charter notion of self-defense was not applicable nor would the American extension of the war to North Vietnam in 1965 have enabled the Security Council to restore peace due to the veto power possessed by the geopolitical antagonists, the Soviet Union, China, and the United States. For these reasons the Indochina War, despite its scale and level of destruction, was undertaken without heeding or seriously engaging the UN framework or contemporary international law.[1] The U.S. Government, in particular, issued elaborate documentary justifications for the forcible actions undertaken by invoking international law. Its legal rationalizations were partisan in nature and one-sided, and as such unconvincing to the scholarly community of international jurists.

As well, both in Indochina and the Middle East the warfare that resulted was not between political entities of symmetric technological capabilities and tactics. International law had been evolved to address wars fought between sovereign states of roughly equivalent technological capabilities, and was concerned with limiting and regulating war rather than outlawing it. The experience of World War II convinced the victors that there was a gap in the legal framework concerning the protection of civilians living under military occupation, captured prisoners of war, and the treatment of wounded soldiers on the battlefield. This realization resulted in the negotiation of the four Geneva Conventions of 1949, a new corpus of law that became known as ‘international humanitarian law.’

Yet these Geneva Conventions were still preoccupied with wars between sovereign states. What was shown by the Indochina and Middle East wars of the 1960s was the importance of extending international humanitarian law (IHL) to conditions of sustained warfare within sovereign states, especially when magnified in intensity by external interventions, proxy wars, and geopolitical alignments. Acknowledging the prevalence of this new type of violent conflict gave rise to the two 1977 Geneva Protocols that were deemed supplemental to the 1949 treaties. In particular, Protocol I dealing with the Protection of Victims in International Conflicts was a tricky area for international law as it challenged the sovereign rights of the territorial government, and even trickier for the United States as it explicitly extended the protection of international humanitarian law (IHL) to armed conflicts in which a people are fighting against colonial domination, alien occupation or racist regimes.[2] This meant that Protocol I applied to foreign interventions in domestic armed conflicts that were struggles over the control of the state. Protocol II was somewhat less controversial as it extended IHL to non-international conflicts and did not have any bearing on interventionary diplomacy, although it did seek IHL accountability for purely internal wars, purporting to put legal limits on previously unlimited territorial sovereign rights.

By considering such conflicts as entitled to international protection it was perceived as weakening the sovereign authority of states to deal with insurgent opposition movements without being subject to international legal accountability. This resistance to the internationalization of anti-colonial struggles pertains directly to the Vietnam and Palestinian experiences. Indeed, the diplomacy producing the Protocol was prompted by the tactics and experience of the Vietnam War, which exhibited gaps in the coverage of international humanitarian law as specified by the four Geneva Conventions of 1949.[3] The importance of exempting such armed conflicts from IHL is part of the geopolitical effort to retain freedom of geopolitical maneuver, as Cuddy and Kattan explain, in the momentous international shift from the earlier international law focus on total war to the new realities of endless limited, yet devastating, wars. Protecting civilian populations in this new epoch of post-colonial warfare, as in Syria, Yemen, Afghanistan, Iraq, Libya, and Ukraine are suggestive of the need for further renovation and effective implementation of IHL, and indeed the overall law of war framework. A merit of this volume is to frame this transition by reference to the Vietnam and Middle East experiences, with particular reference to the unresolved Palestinian struggle. This struggle has taken on a new relevance in the last five years as a result of an emergent civil society consensus that Israel apartheid policies and practices are blocking the realization of the long denied basic rights of the Palestinian people.

In assessing these legal developments two features of international political society are paramount, and need to be kept in mind when discussing the two geographically and psycho-politically distinct war zones:

  • the primacy of geopolitics vis-a-vis international law
  • the primacy of military necessity in combat situations

These two realities, given the absence of centralized governmental institutions on a global level, have accentuated the marginality of international law in war/peace situations, both with respect to recourse to force and the behavior of the parties in the course of warfare.

Acknowledging these two definitive constraints on the role of international law in relation to war should not lead us to cynical conclusions that ‘law is irrelevant with respect to war’ or that ‘international law does not matter.’ International law is relevant and matters for several reasons: it empowers civil society activism; it provides a channel for domestic dissent from war making in democratic societies in both government circles and civil society; it moderates behavior of belligerent states to the extent that reciprocal interests support compliance with international legal norms (e.g. treatment of prisoners of war).

During the Vietnam War, the U.S. Government was more eager than subsequently, to retain its liberal image as a champion of a law-governed international order, and so went to great lengths to argue that its policies and practices in Vietnam accorded with international law and the UN Charter. Such motivations also legitimated anti-war activism that could invoke international law to challenge Washington’s behavior in Vietnam. It also emboldened critics in Congress to mount objections framed in legal and constitutional language, and allowed international law scholars like myself to be invited to testify before Congressional committees or have opinion pieces published in mainstream media venues.[4]

Unfortunately, with the rightest drift in American politics and the lobbying leverage of AIPAC and other Zionist groups, the authority of international law and the UN have experienced sharp declines. The U.S. no longer invests diplomatic energy in upholding a liberal image, and increasingly relies on coercive threats and militarism to pursue its foreign policy goals, especially in the Middle East. The reliance on unlawful threats of military attack has been at the core of U.S./Israeli/Saudi confrontational diplomacy directed at Iran for several decades. This trend has reached a symbolic climax of sorts by its imposition of sanctions on the Prosecutor of the International Criminal Court for recommending an investigation of U.S. war crimes in Afghanistan. Israel, also, has responded with a furious denunciation of this international institution for daring to propose a limited investigation of its crimes in Occupied Palestine. Although the U.S. government after a change in presidential leadership terminated its sanctions imposed on ICC officials, it refused to accept the extension of ICC authority to investigate allegations against itself or Israel. Since the Ukrainian Crisis of 2022 the U.S. Government has displayed a mixture of hypocrisy and opportunism by urging ICC investigation of Russian war crimes in Ukraine, and the indictment of Putin.

The fury of these reactions suggests two opposite interpretations. The first, and most obvious, is the refusal of leading states to defer to international law in settings where national security issues or geopolitical alignments are paramount. And the second, that the fury of the reactions to legally framed allegations suggest how deeply sensitive the governments and leaders of such states become when accused of serious violations of international law by credible procedures. In response, such governments do not try to defend their behavior, but move to discredit and weaken international procedures of accountability, in part, as a form of damage control to avoid any worsening of their international reputations. Even if the ICC were to prosecute and convict, there is almost no prospect that its judgments would be enforced, and so the whole pushback is about safeguarding legitimacy and opposing impingements by the deployment of symbolic politics as causative influences in traditional spheres of geopolitical and sovereign autonomy.

A Brief Comment on the Two War Zones

For the United States in Vietnam the Charter norms were perceived as inconsistent with the mission to prevent a Communist victory in South Vietnam and a subsequent unification of Vietnam under the control of Hanoi. It was believed in Washington that it was militarily necessary to extend the war zone beyond the boundaries of South Vietnam to punish North Vietnam for supplying the anti-regime insurgency led by the NLF. Similarly, the extensions of the war to Laos and Cambodia were prompted by calculations associated with disrupting the support of the war in the South of Vietnam by keeping a base area in and maintaining supply chains that passed through Cambodia. Similar reasoning produced sustained U.S. air attacks on Laos, unlawfully abusing diplomatic privileges by orchestrating this military campaign from within the American Embassy in the Laotian capital city of Vientiane. In other words, the Cold War priorities prevailed over efforts to constrain recourse to war and tactics in war.  On the other side, the priorities of national liberation and anti-colonial legitimacy also prevailed over legal constraints.

In the Middle East there were similar factors at work, although tempered by some balancing considerations. The United States was still in the 1960s seeking to balance, at least in public, its commitment to Israel with its vital strategic interests in retaining favorable access to regional oil supplies at affordable prices situated in Arab countries. In this respect, contrary to Israel’s wishes at the time, the U.S., along with European countries, sought to affirm international law with respect to the acquisition of territory by force, the major premise of the unanimous UN Security Resolution 242 adopted after the 1967 War. Yet even then there was insufficient political will to implement the rhetoric, by an insistence on a timely Israeli withdrawal.

Of even greater relevance to the focus of the volume is the degree to which antagonists in the Middle East with respect to Israel/Palestine evaded the Charter norm on recourse to war. Israel in 1967 and Egypt in 1973 both sought to gain military advantage by striking first, and thus apparently violating the requirement of a prior armed attack contained in Article 51, although there are respectable legal counter-arguments in each setting.[5] Both governments defended their actions by claiming security imperatives as providing a convincing ‘legal’ rationale for preemption.

As far as interconnections are concerned, both war zones produced conflicts that ignored the fundamental framework of international law and institutional accountability that was the hallmark of the war prevention efforts after World War II. The asymmetric nature of the wars also strained the law of war during combat, especially in Indochina, but also in the Middle East to the extent that warfare after 1967 temporarily shifted to Palestinian efforts to pursue an armed struggle strategy that was designated as ‘terrorism’ by Israel and its supporters.[6] During its various military attacks on occupied Gaza Israel exhibite a disregard for international law constraints, and did no without suffering any adverse consequences. This counter-terrorist rationale had been used by the U.S. in Vietnam, but with less impact due to the outcome of the struggle and the absence of widespread support for the war in the West, including even in the U.S. in its last stages.

International Law Evolves

Against this background it becomes possible to get a better appreciation of how international law evolves. It is important to realize that in some sense all of international law is ‘soft law’ because of the absence of regular procedures of authoritative interpretation and enforcement, not to mention ‘the geopolitical exemption’ of the winners of World War II implicit in the right of veto conferred by the Charter.

Added to this, international law in relation to peace and security issues suffers from the special issues previously mentioned—essentially, the primacy of geopolitics and of military necessity. Geopolitics manipulates the law governing recourse to force, while military necessity by its priority under combat circumstances is constantly reshaping the law involving the use of force.

A major interconnection between Indochina and the Middle East is illustrative. In Indochina the United States created a strong precedent for disregarding the Charter conceptions governing the law governing recourse to force. It put forward some legal justifications to the effect that North Vietnam was guilty of ‘indirect aggression’ by its support of the insurgency in the South, creating a legal foundation for extending the war beyond the artificial boundary delimiting South Vietnam. After the 1964 Gulf of Tonkin alleged attack on American naval vessels in international waters and the February 1965 NLF attack on a U.S. military camp near Pleiku, the U.S. Government shifted its legal rationale to one of collective self-defense against a prior armed attack.[7] It also contended that Cambodia and Laos violated the laws of war governing neutrality by allowing their territories to be used for hostile purposes associated with North Vietnam’s belligerent activities.

Although Israel in 1967 and Egypt in 1973 did not specifically invoke the American precedents set in the Vietnam War, their conduct was shielded from critical scrutiny by the combination of a weakening of the geopolitical commitment to the Charter conception of permissible recourse to force, and by the sense that these specific recourses to force were within their context ‘reasonable.’ Because of the geopolitical alignment with Israel, the Egyptian surprise attack on Israel was legally condemned by Western countries, but in a manner that made it appear to be more an expression of alliance diplomacy than a pronouncement of allegiance to international law. Such a view gains weight from the pattern of practice in years subsequent to 1973.

It was also evident that the West controlled international legal discourse on permissible and impermissible uses of force. In this way the violence of non-state actors and liberation movements was demonized as ‘terrorism’ while state violence even if directed at civilian targets was treated under rubrics of security and self-defense rather than delimited as ‘state terror.’ Such a discourse gained wider impacts after the 9/11 attacks on the U.S., and through the launch of the so-called ‘War on Terror.’ It has impacted strongly in the Middle East contexts, especially allowing Israel to validate its excessive force and collective punishment as security measures or as the exercise of the right of every sovereign state to defend itself. To some extent, especially in recent years, the UN has challenged this discourse by issuing many reports on Israeli violations of the Geneva Conventions and international humanitarian law more generally. This tension between the geopolitical discourse and the UN discourse is what leads the U.S. and Israel, in particular, to make accusations about UN bias when it comes to violations of international law. It is this tension, however, that encourages civil society initiatives to claim the legitimacy of international law, as is the case with support for the BDS Campaign or by mounting challenges to Israeli apartheid.

It should be noted, in passing, that when Western interests are engaged, as by Russia’s recent aggression against Ukraine, the Charter framework is again invoked as if it is as authoritative and constraining as when adopted in 1945. In other words, the fate of norms is tied to the control of the international normative discourse, and especially in relation to the geopolitics of propaganda. For partisans it highlights the relevance of international law, while for objective jurists it suggests the manipulation of law as a self-serving policy instrument aptly invoking criticisms of double standards.

Conclusion

The main conclusion reached is that the Charter framework established in 1945 was greatly weakened, if not altogether rendered somewhat anachronistic, by the combined impact of geopolitical opportunism and military circumstances in the wars taking place in Indochina and the Middle East in the decades after World War II. To some extent, it can be asserted that the Charter framework was always unrealistic given the character of a state-centric world order system that included hegemonic actors recognized as such by their right of veto in the UN Security Council, a disempowering reality that became fully evident onlly after the onset of the Cold War. The nature of the conflicts, which consisted of nationalist movements was also not anticipated by the kind of legal order envisioned for the post-World War II, and not able to cope with the normative challenges of asymmetric warfare or wars of national liberation.

There is also an important tension with regard to the orientation toward normative discourse. The West seeks a statist discourse with unrestricted discretion for geopolitical actors, excepting of course, its rivals who are to be held fully accountable by reference to the UN Charter framework. The South, and at the UN General Assembly, is generally favorable to the claims of nationalist movements and anti-colonialist struggles, especially if directed toward liberation from European or Western control. In this regard, this subaltern discourse is supportive of the situation of the Vietnamese and Palestinian national liberation struggles, given concreteness in international law by the wide consensus supporting the inalienable right of self-determination as enshrined in Article 1 of both International Covenants on Human Rights, and more broadly reaffirmed in the influential Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.[8]

NOTES:

[1] Indeed, the flaunting of international law was so notorious and the failure of the UN to respond so pronounced that the celebrated British philosopher, Bertrand Russell, convened a civil society tribunal charged with assessing unlawful conduct and international crimes. The tribunal was composed of leading public intellectuals, presided over by Jean-Paul Sartre, and producing a full documented set of conclusions relating to U.S. violations of the laws of war. See John Duffett, ed., Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal, (1968). See also Tor Krever’s chapter in this volume for a more detailed discussion of the Russell Tribunal.

[2] On the reasons for the US refusal to ratify the Additional Protocols see the chapter by Victor Kattan in this volume.

[3] On the influence of the Vietnam and Arab-Israeli conflicts on the drafting of Additional Protocol 1 see the chapters by Amanda Alexander and Ihab Shalbak and Jessica Whyte in this volume.

[4] On the significance of international law for civil society activism and domestic dissent during the Vietnam War, see the chapter by Madelaine Chiam and Brian Cuddy in this volume.

[5] See John Quigley’s chapter in this volume for a differing legal characterization of responsibility for initiating the 1973 War. See also, John B. Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War (Cambridge University Press 2013).

[6] On the development of ‘operational law’ in the U.S. and Israel, which appears to have been developed partly in response to the conflict conditions in Vietnam and the Middle East as well as the new IHL rules of the 1977 Additional Protocols, see the chapter by Craig Jones in this volume.

[7] For further analysis see Brian Cuddy’s chapter in this volume. Both the Gulf of Tonkin and Pleiku attacks were used to justify plans to expand the combat zone in Vietnam to the north of the country, across the international boundary.

[8] General Assembly Resolution 2625, 24 October 1970, A/Res/2625.

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Richard Falk is a member of the TRANSCEND Network, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Power Shift (2016); Revisiting the Vietnam War (2017); On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (2019); and On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019). He is the author or coauthor of other books, including Religion and Humane Global Governance (2001), Explorations at the Edge of Time (1993), Revolutionaries and Functionaries (1988), The Promise of World Order (1988), Indefensible Weapons (with Robert Jay Lifton, 1983), A Study of Future Worlds (1975), and This Endangered Planet (1972). His memoir, Public Intellectual: The Life of a Citizen Pilgrim was published in March 2021 and received an award from Global Policy Institute at Loyala Marymount University as ‘the best book of 2021.’ He has been nominated frequently for the Nobel Peace Prize since 2009.

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