{"id":34405,"date":"2016-01-15T17:05:59","date_gmt":"2016-01-15T15:05:59","guid":{"rendered":"http:\/\/www.reunion68.se\/?p=34405"},"modified":"2016-01-15T17:42:39","modified_gmt":"2016-01-15T15:42:39","slug":"34405","status":"publish","type":"post","link":"https:\/\/www.reunion68.se\/?p=34405","title":{"rendered":"Sweden’s Foreign Minister Misunderstands International Law"},"content":{"rendered":"
\"Bloomberg<\/a>Sweden’s Foreign Minister Misunderstands International Law<\/a><\/strong><\/span><\/h5>\n

Noah Feldman<\/strong><\/span><\/p>\n

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Now unwelcome in Israel.\/ Photographer: Timothy A. Clary\/AFP\/Getty Images<\/em><\/span>
\n\"<\/p>\n

One of Europe\u2019s most liberal countries has joined the likes of Iran and Turkey in drawing the ire of Israel. Israel has officially let it be known that Swedish Foreign Minister Margot Wallstr\u00f6m isn\u2019t welcome in the country because of comments she made in December warning that Israel might be committing \u201cextrajudicial executions\u201d in connection with stabbing attempts by Palestinians against Israeli citizens.<\/strong><\/span><\/p>\n

Wallstr\u00f6m defended herself in Sweden\u2019s parliament this week, insisting that she \u201cwas making an argument based on principles of international law.\u201d Her critics say she\u2019s apologizing for terrorism and hiding behind the law.<\/span><\/p>\n

This is more than the usual international diplomatic incident. Wallstr\u00f6m\u2019s response poses core questions about the nature and uses of international law itself: to what extent can it be applied to instantaneous events that take place in the course of policing? As a teacher of international law, I find Wallstr\u00f6m\u2019s interpretation at best confused, and at worst outright mistaken.<\/span><\/p>\n

There are at least three distinct problems with her argument. First is the question of whether international law applies to the use of lethal force by police as part of an arrest.<\/span><\/p>\n

States are indeed bound not to kill their citizens extrajudicially. That\u2019s why, for example, a state-run death squad would count as an international legal violation.<\/span><\/p>\n

But it\u2019s not at all clear that use of force by police in the course of capturing someone committing a crime is included in the international legal prohibition. Put another way, on Wallstr\u00f6m\u2019s theory, the killing of Michael Brown in Ferguson, Missouri, wouldn\u2019t simply be an issue for the state courts or the U.S. courts. It would be an issue for international criminal investigation. The same would be true for every case in the world where police used deadly force when attempting an arrest.<\/span><\/p>\n

That would include the use of lethal force by police in Trollh\u00e4ttan, Sweden, against a man who killed three people at a school in October. He was armed with a sword, and police killed him with firearms. Yet Wallstr\u00f6m has not, to my knowledge, called for an international criminal investigation of the response.<\/span><\/p>\n

Assume, however, for the sake of argument that international law does apply to police use of lethal force.<\/span><\/p>\n

That raises a second, substantially more serious problem with Wallstr\u00f6m\u2019s analysis: She has confused two areas of international law, mistaking the rules governing war with those governing domestic arrest.<\/span><\/p>\n

Before the Swedish parliament, Wallstr\u00f6m referred to \u201cthe right of self-defense and the importance of the principles of proportionality and distinction.\u201d Proportionality and distinction belong to the body of international law governing the use of military force in wartime against combatants.<\/span><\/p>\n

But these principles don\u2019t apply to domestic police arrests of civilians committing violence, like the stabbers in Israel or the Trollh\u00e4ttan attacker.<\/span><\/p>\n

According to Philip Alston, a former colleague of mine at New York University School of Law who has served as a special rapporteur on extrajudicial killings for the United Nations, the legal standard is that police \u201cmay only use intentional lethal force when it is clear an individual is about to kill someone and cannot be detained by other means.\u201d<\/span><\/p>\n

Notice that proportionality and distinction aren\u2019t relevant here. This is especially important because Wallstr\u00f6m went out of her way to emphasize that \u201c21 Israelis and 100 Palestinians were killed in connection with knife attacks, acts of violence, demonstrations and clashes.\u201d The numbers are legally irrelevant.<\/span><\/p>\n

That also makes moral sense. Police making arrests aren\u2019t morally or legally obligated to allow innocent people to die in order to balance the number of deaths of criminal attackers. Effective police are supposed to save the innocent and subdue the attackers, by lethal means if necessary.<\/span><\/p>\n

Proportionality and distinction are relevant to military targeting where innocent civilians may be killed. But the only people being killed by police in an arrest are supposed to be criminals who must be stopped from committing murder.<\/span><\/p>\n

Wallstr\u00f6m\u2019s legal error is thus also a moral error, reflected in her statement that Israelis and Palestinians \u201cwere killed in connection with knife attacks.\u201d The Israelis in question were killed by Palestinians wielding knives. In so far as it\u2019s possible to determine, the Palestinians in question were killed after they wielded the knives, attacking Israelis. There\u2019s a crucial moral difference between the two kinds of \u201cconnection\u201d to the knife attacks.<\/span><\/p>\n

The third legal problem with Wallstr\u00f6m\u2019s analysis is that there have been no credible reports, to my knowledge, that Israeli police haven\u2019t followed international use-of-force standards.<\/span><\/p>\n

Under Israeli law, lethal force in an arrest must be an unavoidable necessity to prevent the frustration of the arrest, and the crime in progress must pose the threat of physical harm or death. In the words of the Israeli Supreme Court, \u201cthere must be a reasonable relationship between the degree of danger and the degree of force applied.\u201d<\/span><\/p>\n

This legal standard, which matches the international standard, appears to have been followed. No watchdog organization has provided evidence that Israeli police have been deviating from it.<\/span><\/p>\n

In one instance in October, Israeli bystanders to a stabbing — not police — lynched an Eritrean national who was mistaken for a terrorist after the attack. Such spontaneous killings by civilians are (naturally) prohibited by Israeli domestic law. Indeed, on Wednesday, Israeli authorities filed criminal charges against four people for the beating.<\/span><\/p>\n

To be clear, Wallstr\u00f6m cannot have been referring to that attack. Legally speaking, international law regulates states and state actors, not individuals. Repugnant though it was, the lynching isn\u2019t a proper subject for international law because it wasn\u2019t committed by the state or under its auspices or approval.<\/span><\/p>\n

Wallstr\u00f6m is a moralist foreign minister who claims to respect international law. If that\u2019s the case, she should get the law right. Serious mistakes of law can lead to serious mistakes of moral judgment, not just diplomatic troubles.<\/span><\/p>\n

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.<\/span><\/p>\n

\n

To contact the author of this story:<\/em><\/span><\/p>\n

Noah Feldman<\/strong> at nfeldman7@bloomberg.net<\/a><\/strong><\/span><\/em><\/span><\/p>\n

To contact the editor responsible for this story:<\/em><\/span>
\nStacey Shick<\/strong> at sshick@bloomberg.net<\/a><\/strong><\/span><\/em><\/span><\/p>\n

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Sweden’s Foreign Minister Misunderstands International Law Noah Feldman Now unwelcome in Israel.\/ Photographer: Timothy A. Clary\/AFP\/Getty Images One of Europe\u2019s most liberal countries has joined the likes of Iran and Turkey in drawing the ire of Israel. Israel has officially let it be known that Swedish Foreign Minister Margot Wallstr\u00f6m isn\u2019t welcome in the country […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[6],"tags":[26,24],"_links":{"self":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts\/34405"}],"collection":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=34405"}],"version-history":[{"count":16,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts\/34405\/revisions"}],"predecessor-version":[{"id":34407,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts\/34405\/revisions\/34407"}],"wp:attachment":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=34405"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=34405"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=34405"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}