Jonathan C. Hamilton, “The Role of Law and the Rule of Media
and Politics in International Affairs,” American Journal of International Law (2002)

The author reported on proceedings at the American Society of International Law annual conference held in Washington, DC, in March of 2002, as subsequently published in the American Journal of International Law. The discussion focused on law, media, and politics in connection with international affairs and in particular the Middle East.

The Late‑Breaking Events Panel was convened following the Annual Dinner of the Society on Friday, March 15 by Vaughan Lowe of Oxford University.  The panelists included Rodman R. Bundy of Eversheds, Roy Gutman of Newsday, and Miriam Sapiro of Verisign, Inc.

The panel considered the impact of international law on media coverage and political issues related to international affairs.  The panel focused specifically on the breaking events in the Middle East where violence once again erupted in the form of Palestinian suicide bombings and corresponding Israeli military retaliation.

The Roles of Law and Politics in the Middle East Crisis

Vaughan Lowe, an engaging panel chair, explained that the rationale for focusing on the crisis in Israel was that no other international crisis has ever been so legalized, as indicated by the centrality to the conflict of international legal instruments.  Professor Lowe cited the latest example of that pattern, Resolution 1397 adopted by the United Nations Security Council on March 12, 2002, just days before the panel.  Pursuant to Resolution 1397, the UN Security Council demanded a cessation of acts of violence and reaffirmed its vision of a Middle East resolution providing for Israel and Palestine to co‑exist as neighboring states.  Professor Lowe then launched the panel by asking each panelist to assess the Middle East crisis, considering whether law played a role in making it an important event for the media.

The Role of Law

Roy Gutman, well‑known for his coverage of the Bosnian crisis, affirmed that the international human rights law framework is essential to effective reporting on international affairs.  As a testament to this belief, he cited his experience reporting on war crime atrocities in the former Yugoslavia and his subsequent establishment of the Crimes of War Project to educate journalists on international human rights law.

Turning to the issue of the Middle East, Mr. Gutman stated that, since 1967, Israel has chosen to take into its own hands the determination of whether the Fourth Geneva Convention regarding occupied territories applies in any given conflict situation.  A signatory to the Fourth Convention, Israel has long argued that the West Bank and Gaza are “administered areas” rather than “occupied territories,” though Israel does claim to apply certain humanitarian provisions regarding the protection of civilians.  In contrast, the Palestinian Authority argues that the West Bank and Gaza are, in fact, occupied territories, and the Palestinian Liberation Organization has attempted to accede to the Fourth Convention as a vehicle to register its views.

Mr. Gutman argued that international legal aspects of breaking events in the Middle East are important because the fate of the peace process will determine the “death or life” of the Geneva Conventions.  He also pointed out that the future of the Conventions depends on the leadership of the United States, and referred to the close attention paid to the U.S. assessment of whether the Third Convention applies to prisoners detained by the U.S. offensive in Afghanistan.

The Rule of Politics

Rodman Bundy took a diametrically opposed position to Mr. Gutman, declaring that the Middle East crisis is “not relevant to the development of international law.” He further stated the any solution to the crisis would not be based in law, neither as to the legal effect of treaties nor the scope of state responsibility.  He drew a clear dividing line between the role of law and the rule of politics, concluding that the crisis could only be resolved by political means.  Only a political solution offers the parties options.  He then surmised that the crisis was likely to deteriorate further before the parties could see the potential for political options.  Mr. Bundy then critiqued his own stance by quoting Oscar Wilde:  “A cynic knows the price of everything and the value of nothing.”

Mr. Bundy nonetheless stated that there is “never a greater need” for the involvement of lawyers than the Middle East crisis.  (One was thus reminded of the relevance of another Oscar Wilde quip:  “The well‑bred contradict other people; the wise contradict themselves.”) He maintained that lawyers will not play a significant role in the resolution of the crisis, but clarified that lawyers have a crucial role to play in the implementation of any political resolution.  He cited as one example the implementation of political agreements regarding rights to oil off the coast of the Gaza Strip.  Mr. Bundy concurred with Mr. Gutman that the United States has a crucial role to play in the efforts to resolve the crisis, certainly politically, and possibly legally, as well.

Political Solutions

Miriam Sapiro cast her vote quickly and clearly in the debate over the roles of law and politics in the Middle East crisis, stating, “I agree with Rodman.” She stated that the crisis has received extensive, sensationalistic press coverage that obscures possible solutions, including the role of lawyers and policymakers.  She then laid out various elements of a possible solution to the Middle East crisis, including, among other things, uprooting terrorism, stabilizing of moderate Arab states, containing of rogue states and, over the long term, promoting “the “D” word:  Democracy.”

Ms. Sapiro submitted that the Middle East crisis is a major international challenge, but it is not the greatest one at present given the pressing challenge of the battle of the United States against terrorism.  She pointed to the emphasis of the Clinton administration on peacemaking, but argued that the war on terrorism following the attacks of September 11, 2001 changed the interest of the United States in internal governance in countries such as Saudi Arabia.  Ultimately, Ms. Sapiro concurred with Mssrs. Gutman and Bundy as to the importance of the U.S. role to the management of the Middle East crisis.

The Role of the Media in International Affairs

Professor Lowe then asserted that he disagreed “fundamentally” with the panelists, especially for their uniform emphasis on the importance of the U.S. role in Middle East, and for understating the manipulative role of the media in shaping the thought and strategies of policymakers.  “The media can do better,” he stated, and added that “what is happening depends on the media.” He questioned whether the role of the media was a simple matter of packaging, pointing to a deeper influence of the media on the priorities and potential of policymakers.  For example, the media had shaped the response of Western governments to the humanitarian crisis in Bosnia.  He asked what similar role the media is playing in connection with the increase in violence in the Middle East crisis.  His comments sparked a committed round of verbal jousting among the panelists.

Mr. Gutman replied, simply, “Don’t blame the media.” He further stated that “the U.S. should do more” in the Middle East because it is in a unique position to stem the “disgraceful” level of violence.  He argued that the role of the media in international affairs usually amounts to “just following developments.” He argued that the situation in Israel is a war, ongoing intermittently for fifty years, even though the conflict has not routinely been referred to as a war in the press.  He stated that the laws and rules of war should apply to the conflict, and argued that international law could thus be used to curb violence.  “Law can help us here, to single out war crimes,” he concluded.  International human rights law, he offered, might help highlight violations and minimize violence until negotiations can proceed.  He further posited that lawyers should encourage journalists to understand human rights law, arguing that a war crime is not merely “a political thing,” but a crime, and “should be labeled as such.” He suggested that the media should play an active role in identifying and reporting on crimes against humanity.

Mr. Bundy concurred that the media is not to blame for the failed peace agenda in the Middle East.  He assigned responsibility to the principal parties to the crisis, including the key Arab parties.  He stated that a recent Saudi peace proposal was “nothing new,” and was only characterized as a bright light because the situation had grown so dim.  He laid blame at the feet of Mr. Arafat, who, he commented, has “never missed an opportunity to miss an opportunity.” He pointed to the effect of the terrorist attacks of September 11 on the role of the United States in international affairs, optimistically noting a “silver lining” because the current administration had realized that “it needed the rest of the world.” He sounded notes of concern, though, based on the recent reference by President Bush to an alleged “Axis of Evil” and the widespread concern in Europe over U.S. unilateralism.  He concluded that solidarity between the United States and many other nations was a positive result of the terrorist tragedies of September 11, but worried that “we are throwing it away.”

Ms. Sapiro joined the other panelists in downplaying the ability of the media to shape developments in international affairs, and particularly in the Middle East.  She returned again to the possibility for a peaceful solution to the crisis in Israel, which she argued is not so complicated if broken down to key components, including a cessation of violence, an Israeli stoppage of settlements and surrender of land, a Palestinian renouncement of terrorism and recognition of Israel.  She repeatedly emphasized the primacy of politics, arguing, “What’s missing is political will, meaning pressure on the parties” by the United States and other players.  In turn, she minimized the contributions of the media and international law, commenting that “both parties can argue the law” and concluding that “law can help but not lead.”

As the evening drew to a close, the chair brought the discussion to a halt by mentioning the hopes and aims of the rule of law in international affairs, and questioned whether, in the face of an influential media and the residual power of politics, law is ultimately capable of fulfilling an imagined role satisfying such hopes and high aims.

The hopes and aims of the rule of law in international affairs, provoke questions of whether, in the face of an influential media and the residual power of politics, law is ultimately capable of fulfilling an imagined role satisfying such hopes and high aims.