Now unwelcome in Israel.

Photographer: Timothy A. Clary/AFP/Getty Images

Sweden's Foreign Minister Misunderstands International Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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One of Europe’s 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 Wallström isn’t welcome in the country because of comments she made in December warning that Israel might be committing “extrajudicial executions” in connection with stabbing attempts by Palestinians against Israeli citizens.

Wallström defended herself in Sweden’s parliament this week, insisting that she “was making an argument based on principles of international law.” Her critics say she’s apologizing for terrorism and hiding behind the law.

This is more than the usual international diplomatic incident. Wallström’s 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 Wallström’s interpretation at best confused, and at worst outright mistaken.

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.

States are indeed bound not to kill their citizens extrajudicially. That’s why, for example, a state-run death squad would count as an international legal violation.

But it’s 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 Wallström’s theory, the killing of Michael Brown in Ferguson, Missouri, wouldn’t 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.

That would include the use of lethal force by police in Trollhättan, 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 Wallström has not, to my knowledge, called for an international criminal investigation of the response.

Assume, however, for the sake of argument that international law does apply to police use of lethal force.

That raises a second, substantially more serious problem with Wallström’s analysis: She has confused two areas of international law, mistaking the rules governing war with those governing domestic arrest.

Before the Swedish parliament, Wallström referred to “the right of self-defense and the importance of the principles of proportionality and distinction.” Proportionality and distinction belong to the body of international law governing the use of military force in wartime against combatants.

But these principles don’t apply to domestic police arrests of civilians committing violence, like the stabbers in Israel or the Trollhättan attacker.

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 “may only use intentional lethal force when it is clear an individual is about to kill someone and cannot be detained by other means.”

Notice that proportionality and distinction aren’t relevant here. This is especially important because Wallström went out of her way to emphasize that “21 Israelis and 100 Palestinians were killed in connection with knife attacks, acts of violence, demonstrations and clashes.” The numbers are legally irrelevant.

That also makes moral sense. Police making arrests aren’t 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.

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.

Wallström’s legal error is thus also a moral error, reflected in her statement that Israelis and Palestinians “were killed in connection with knife attacks.” The Israelis in question were killed by Palestinians wielding knives. In so far as it’s possible to determine, the Palestinians in question were killed after they wielded the knives, attacking Israelis. There’s a crucial moral difference between the two kinds of “connection” to the knife attacks.

The third legal problem with Wallström’s analysis is that Israeli law tracks international use-of-force standards. 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, “there must be a reasonable relationship between the degree of danger and the degree of force applied.”

To be sure, this legal standard, which matches the international standard, may not have been followed in every instance. The Israeli human rights group B’Tselem has criticized Israeli police, asserting the existence of “excessive and unwarranted use of lethal gunfire” in several cases where stabbers were killed. And B’Tselem has warned that although Israeli officials have recited the correct legal standard, they’ve also used “inflammatory language” stating that terrorists “will not survive” the attacks they perpetrate. But even B’Tselem has not alleged any violation of international law.

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.

To be clear, Wallström 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’t a proper subject for international law because it wasn’t committed by the state or under its auspices or approval.

Wallström is a moralist foreign minister who claims to respect international law. If that’s the case, she should get the law right. Serious mistakes of law can lead to serious mistakes of moral judgment, not just diplomatic troubles.

(Corrects 18th and 19th paragraphs of article published Jan. 14 to include a report from an Israeli human-rights group that criticizes police action against Palestinian stabbers, although it has found no international law violations. Because of an editing error, a previous version of this column said there had been no credible reports of police misconduct.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net