Damaged Beyond Repair? International Law after Gaza

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“Never has [an international law professor] sensed such profound skepticism about the legitimacy and usefulness of the discipline he teaches. Hasn’t the appalling conflict unfolding before our eyes demonstrated with tremendous eloquence the vanity, or at least the extreme fragility, of a so-called legal order in relations between states, at the very moment when its development was announced as certain and complete? Is it not, therefore, a very serious error and peril to lead people to trust in the rationality of law in an area where force has the last word?”

These words could easily be mistaken for yet another instance of lamentation about international law uttered in 2024. Many readers may be surprised to hear that they were pronounced by Dionisio Anzilotti in his inaugural conference at the University of Rome just a few weeks after the invasion of Belgium by Germany in 1914.

Fast forward to eight decades later: another international law professor, reacting – in an EJIL article tellingly subtitled “Letter from a Distraught Professor to the EJIL Readers” – to 1993 American missile strikes on Irak, asked “what on earth are we teaching our students? What nonsense do we write in our books about the use of force in international law?”

Juxtaposed with each other, these statements can inspire many intriguing thoughts. One may say that there is nothing new under the sun and that international law has always been hopelessly ineffective in constraining the use of force in international affairs. A somewhat cynically-minded and better-informed observer may be tempted to say “Tell me what international lawyers are complaining about at any given point in time, I will tell you how effective international law was at that point in time.” In that spirit, one can highlight, for instance, that the use of force had not yet been outlawed when Anzilotti made his above-quoted statement. Similarly, in view of what we have witnessed subsequently, June 1993 when the US launched 23 cruise missiles on the headquarters of the Iraqi Intelligence Service in retaliation to the attempted assassination of former U.S. President George H. W. Bush arguably looks like an age of innocence for international law. In this post, I want to focus on something else, however, namely the notion that some episodes of international life tend to give international lawyers pause, forcing them to ask themselves deeply challenging questions about teaching international law. I submit that, Gaza, considered together with the episode of the invasion of Ukraine, constitutes such a moment.

The premises of my argument are simple: (i) there is no colorable claim that the invasion of Ukraine could be justified as a matter of international law; (ii) while Israel may have a claim to self-defense, nothing could justify the massive-scale indiscriminate killing of civilian population in Gaza as a matter of international law; (iii) the importance of the rules at stake in both cases is widely and authoritatively recognized; (iv) while powerful western countries were unanimous in strongly condemning the invasion of Ukraine and in issuing wide-ranging sanctions against Russia, no such thing was observed in the case of Israel’s actions in Gaza. Most of those countries continue to supply weapons that possibly contribute to Israel’s actions, and the US financially and militarily supports Israel, while repeatedly vetoing cease-fire resolutions at the UN Security Council until recently.

What is so unique about this state of affairs? Haven’t we learned from Bourdieu that consistency is rarely the hallmark of any social practice and that the logic of practice is “to be logical to the point that being logical ceases to be practical”? Did we really wait for Ukraine and Gaza to discover the intimate connections between international law and politics when we should have known all along that law is the politics that has prevailed, as Emile Giraud memorably put it?

All this is true, but it is not the whole truth. Law may well be politics, but it is not just any kind of politics. Foucault’s famous statement about politics (“politics is the continuation of war by other means”) can be turned into “international law is the continuation of politics by other means” only if it is understood that the key phrase in that statement is not “the continuation of politics”, as those skeptical about international law’s capacity to constrain power would hastily conclude, but “by other means.” Politics expressed through international law is subject to international law’s own characteristics and logic of operation. International law may well be an ideological tool in the hands of powerful states, but that does not prevent it from being a tool in the service of more broadly valued purposes as well. The logic of this dynamic is well explained in EP Thompson’s famous discussion of the rule of law in Whigs and Hunters. The Origin of the Black Act:

people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig. It is inherent in the especial character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity. . . . Most men have a strong sense of justice, at least with regard to their own interests. If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity; indeed, on occasion, by actually being just.

Mark Adomanis, author of The Russia Hand blog at Forbes, once reported that some historians who inspected the minutes from Politburo meetings that took place during the Soviet occupation of Afghanistan were surprised to find out that, even in meetings closed to the public, the leadership of the Soviet communist party seemed genuinely committed to the idea of the “forward march of history” towards communism. But what makes an ideology effective is precisely the fact that it is not a set of implausible ideas imposed on subjects in a sort of cognitive conspiracy; an ideology can only be effective if those behind its promotion believe in it themselves. As Thompson put it, “even rulers find a need to legitimize their power, to moralize their functions, to feel themselves to be useful and just.”

It is the disruption of this dynamic that explains the current crisis of constitutional law teaching in the US today. As a result of recent nominations, the US Supreme Court is today so sharply divided along partisan lines that many professors of constitutional law find it hard to pretend that law is different from politics.  

I submit that we may be experiencing something similar today with international law. What the attitude of powerful Western countries towards Gaza has cruelly evinced is that one of the most essential tenets of the rule of law in international affairs – even-handed application of law – is nothing but a myth. It confirms the growing evidence that not all human lives are worth protecting in the eyes of powerful Western countries. The differential treatment of Ukrainian and African refugees was already a reminder of this painful truth. The virtually total indifference to the fate of 650 migrants who died in the Mediterranean after a fishing trawler transporting them sank in June 2023 and the almost concomitant mobilization of multiple countries and private entities to save five people who had each paid 250,000 USD to visit the wreckage of Titanic was another reminder that some lives are regarded as more valuable than others (see here and here). As vividly described by Judith Butler already in 2010 in connection with the Israel-Palestine conflict, we live in a world in which:

the graphics of Israeli life, death, and detention are more vibrant; it conforms to the norm of human life already established, is then more of a life, is life, whereas Palestinian life is either no life, a shadow-life, or a threat to life as we know it. In this last form, it has undergone a full transformation into arsenal or spectral threat, figuring an infinite threat against which a limitless “defense” formulates itself. That defense without limit then embodies the principles of attack without limit (without shame, and without regard for established international protocols regarding war crimes).

What distinguishes the double standard in the case of Gaza from many other cases of selective application of international law is that the former is too brutally obvious to deny, too difficult to obfuscate, too arbitrary to rationalize. The sheer magnitude of the horror unfolding before our eyes should make any decent human being feel ashamed for humanity. This is, arguably, what the United Nations Secretary-General Antonio Guterres meant when pointing out that “Gaza is more than a humanitarian crisis. It is a crisis of humanity.”

Is there room for hope? Paraphrasing Kafka, I would be tempted to say that there is an infinite amount of hope in the universe but not for the future of international law. On 15 March, the Permanent Representative of Ukraine to the United Nations Sergiy Kyslytsya delivered a Joint Statement in Response to the Russian Federation’s Organization of Presidential Elections in the Temporarily Occupied Territories of Ukraine, which denied the validity of such elections under international law. The statement was endorsed by 56 states, most of which are from the Global North – slightly more than one third of 143 countries that voted for the UN General Assembly’s 12 October 2022 resolution (ESS/11/4) condemning Russian Federation’s attempts to organize referendums in parts of Donetsk, Kherson, Luhansk, and Zaporizhzhia regions of Ukraine. To put it in E.P. Thompson’s words, the Global South seems no longer “mystified” by the first invocation of international law.

In a recent interview, the French Minister of Foreign Affairs seemed concerned by the talks about double standards and stated that he wanted to put an end to “the idea of double standards” (note that he is interested in putting an end to “the idea of double standards”, not to double standards themselves). However, coming from someone whose first public statement as foreign affairs minister was the remark that “to accuse the Jewish state of genocide is to cross a moral threshold”, this rings hollow (he said something more sensible more recently by clarifying that the matter was for the International Court of Justice and the International Criminal Court to decide). History rather confirms Philipp Allott’s wise words that “governments, not least in the most advanced liberal democracies, live in a continuous present, a permanent now, in relation to which the past and the longer-term future are abstractions.” Unfortunately for governments, the time horizon of international law is very much longer than the present. Every breach of international law by a government solely interested in some immediate gratification is a loaded weapon ready for use by any other government interested in doing the same. For every non-compliance by China with an arbitral award, there is the episode of the United States’ non-compliance with the ICJ’s judgment in Nicaragua. For every invasion of Ukraine, there is the episode of the 2003 invasion of Iraq by the coalition led by the United States and the United Kingdom. For every “special military operation” as a substitute for “war” in Ukraine, there is the concept of “enhanced interrogation techniques” used by the United States in Guantanamo to justify torture. One cannot dismiss this by pointing to theoretical shortcomings of whataboutism as if abstract philosophical speculations were a technique of global governance. What is infinitely more relevant than philosophy here is what Allott calls “the consensus of wrongdoing – ‘but everybody does it’”, which every government willing to breach international law is always happy to use.

As Shirley Scott wonderfully put it, “the power of international law can only be the power of the idea of international law.” I started studying international law 29 years ago. A lot has happened since then that may have made many international lawyers sceptical about their discipline. For my part, I have never lost my faith in the power of the idea of international law, making a distinction between individual breaches of rules of law and what undermines the rule of law. That faith is seriously shattered today, as the rule of law in international affairs increasingly looks like humbug. 

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Halimat Edun says

April 3, 2024

This was a very wonderful read which speaks exactly to my confusion - if I may put it this way. How are we onlookers in such glaring disregard for international law? what exactly is so international about the law now anyway when it only purports to serve one over another? Today, it is more difficult to stand before an audience to discuss the merits of International law or the idea of an international community. Even more so amusing when the exact reasons why International law was birthed is exactly the issues we see today and which International law does not seem capable of addressing.

Please take note that these are my musings and it is unaffiliated with any organization that I have worked for or continue to work for.