chapter  6
13 Pages

Israel: The Shard in a Fragmenting Legal Order

WithBY JANICE GROSS STEIN

Israel’s conduct in war stands at the exposed shard of a fragmenting international legal order. Brought to attention recently by the Goldstone Report, Israel’s conduct in an “asymmetrical war” raises all the contradictions of a legal order that is fragmenting, evolving, and yet, as flawed and incomplete as it is, critical to the legitimation of power and the use of force. Unfortunately, the Goldstone Report ignored all these complexities and contradictions and missed the chance to push forward the discussion of international law in a radically changed context. Legal systems play an important role in constituting the structures of the

worlds in which we live and in legitimating their practices. For the past three and a half centuries, the legal principle of sovereignty both reflected and shaped the international state system. International legal orders are especially likely to lag behind the practices

that they codify. They are inherently conservative, slow to change, deliberative in their style, and deliberate in their pace. International legal orders are especially slow to change because the opportunity for judgment and jurisprudence is, relatively speaking, so much less than in domestic legal systems. And, functionally, international legal orders evolve slowly because they are guarantors of institutional and practical legitimacy. However, legal orders do change, as they incorporate new legal norms

and principles. We need think only of the outlawing of genocide, a legal principle put in place after the Nazi genocide of the Jews in the Second World War, the prohibition of torture, the legal requirements in the treatment of prisoners-of-war, the adoption of the Geneva Conventions, the enshrinement of human rights in the international legal system, and the development of international humanitarian law-all changes to international law that occurred in the last century. Although some of these principles-and legal obligationshave often not been observed in practice, their legality is not contested. And insofar as their legality is not contested, they are the legitimating principles of the current international order.