Thucydides wouldn't have been surprised

The February 16-February 28 issue of Counterpunch looked at various statements about international law that have come from offices of the Israeli Defense Forces in the last few years and found in them a systematic disregard for the concept of international law.  These statements, the author of the piece argues, are part of a campaign to render international law irrelevant to the conflicts in Israel/Palestine, and as such represent a threat to the entire project of international law.  The blub on the front of the newsletter asks us to “Imagine an entire world unprotected against occupation, invasions, exploitation, and warehousing, a global Gaza!” 

I would suggest that such a feat of imagination might be rather easy to achieve.  The whole history of mankind, from the earliest records to the present moment, offers us the spectacle of precisely such a world.  International law no more protects the weak against the depredations of the powerful today than appeals to justice protected the Melians against Athens in 416 BC.  

Thucydides’ story of the Peloponnesian Wars summarizes my habitual view of “international law,” in his day and ours.  Writing of the events that had led to the outbreak of war between Athens and Sparta in 431 BC, Thucydides concluded that the main cause of the war was the rising power of Athens and the fear with which the other Greeks viewed that power.  After ten years of desperate struggle, the Spartans and their allies brought Athenian power to a standstill.  A series of negotiations concluded in 421 BC brought the first phase of the war to an end.  Thucydides devotes much of Book 5 of his History to the detailed legalistic language of the treaties of this year known under the name “The Peace of Nicias.”  Thucydides’ decision to devote so much of his text to these documents puts a heavy emphasis on the treaties and their legalism.

Had the History ended there, one might have imagined it to tell a story of the triumph of law in human affairs.  What in fact follows, however, shows that nothing of the kind happened.  The Peace of Nicias was not at all satisfactory, involving frequent confrontations between proxies of Athens and Sparta and occasional battles between Athenian and Spartan forces.  When, five years into that period of  tension, the people of Melos tried to break their alliance with Athens, the Athenians sent envoys to hear the Melians’ case.  The Melians appealed to justice and to the legal principles encoded in the treaties of the Peace of Nicias.  The Athenians responded that “The strong do what they will and the weak suffer what they must.”  When the Melians appealed to notions of legality, the Athenians responded that these obtain among equals, while in cases where one party is far stronger, the other must submit and make the best of submission.  The law that prevails among states is not the sort of law agitated in courts, but a law of nature.  “Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can. And it is not as if we were the first to make this law, or to act upon it when made: we found it existing before us, and shall leave it to exist for ever after us; all we do is to make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do” (Rex Warner’s Penguin Classics translation.)     

The Athenians would destroy Melos, killing its men and selling the women and children as slaves.  Thucydides leaves us to find justice for the Melians in another sort of natural law.  The next topic he turns to is Athens’ invasion of Sicily, a military adventure that would cost Athens tens of thousands of men, virtually its entire fleet, and its hopes of winning the second phase of the Peloponnesian Wars.  By 404 BC, the Athenians would be defeated, as abjectly at the mercy of Sparta as the Melians had been at their own mercy 12 years before.  The ancients Greeks believed that power bred arrogance, that arrogance bred folly, and that folly brought the mighty low. 

The Greeks tended to describe this process in mythological terms, attributing it to the jealousy of the gods.  By laying out a narrative in that traditional form without  dwelling on the gods in his own voice, Thucydides was able to gain a reputation as the first scientific historian.  Whether science can discern in history a pattern of power leading to arrogance leading to folly leading to downfall, the idea of such a pattern is at least as likely to be comforting to the victims of power as are any of the lawyerly fairy tales told at the Hague and in the headquarters of the United Nations. 

As for the case of Israel/ Palestine, the idea of international law may at times have had a gentling effect on the Israeli state.  On the one hand, it may have given the Israeli leadership a set of criteria they had to meet if they were to be assured of a smooth flow of operations in their relations with the outside world.  And now and then, some Israelis may have seen in the promise of international law something they could rally around, something to soften the harsher angles of Zionism.  So whatever limitations there might be in the prospects for international law as an actual force  that could protect the weak “against occupation, invasions, exploitation, and warehousing,” and however much the spectacles that we now call “international law” might disgust us, still we might wish that it will go on.