Peter Berkowitz, a commentator I admire greatly, has a piece at NRO that criticizes the “astonishing attempt to shift power from sovereign states to international institutions” being undertaken by the NGO/international-law community. It’s an excellent analysis, and Berkowitz has been doing important work on the subject, but I have one quibble:

It would be a mistake to think that Israel’s lawyerly self-defense is of purely legal interest. This battle reflects a continuation of war and politics by other means. Indeed, the battle is fraught with weighty implications for all liberal democracies struggling against transnational terrorists.

This point has been made by many people, including the Israeli government itself, and it is a form of the old adage that “first they came for Israel, and I did not speak out because I am not an Israeli.” But I don’t think it’s true in this case. If “lawfare,” as it’s known, were truly a danger to powerful democratic nations, there would be more done to push back against it. Instead, what we see today is democratic nations that pay lip service to its tenets, safe in the knowledge that, while carrying few downsides, endorsing the abstract concepts of international law wins approval from the self-appointed arbiters of international virtue.

This is a war that probably will never spread to the great powers or even to the medium powers. For lawfare to work, several conditions have to be met. The target of lawfare must be: 1) a small and diplomatically weak nation; 2) a democracy whose citizens desire international acceptance; 3) a country surrounded by enemies that force it to fight frequent and indecisive wars, providing a constant supply of fresh “evidence” of criminality.

There is really only one country that meets these conditions — Israel. The U.S. is far too powerful to allow a Richard Goldstone to even bite at its ankles. Indeed, the U.S. has been fighting in Iraq and Afghanistan for almost a decade, and nothing close to a Goldstone Report has been produced. The Russians and Chinese could care less about “international humanitarian law” (Grozny, anyone?), and more important, the IHL fetishists have never been passionate about campaigning against non-Western nations. As Charles Jacobs pointed out several years ago, “To predict what the human rights community (and the media) focus on, look not at the oppressed; look instead at the party seen as the oppressor.”

Lawfare, as I’ve been saying lately, is not about law or ethics. If it were, its proponents would be vastly more scrupulous and reputable than they are. Lawfare is about power, specifically the attempt by a group of political radicals who have very little power to gain it in the only way they can — by negating sovereignty and pursuing a Gulliver strategy that only has a chance of working against small, embattled countries. The United States probably won’t pay that much attention to this fight, because the United States doesn’t have much to fear from it.