Why does international law benefit the perpetrators of global conflict?

Analysis: By its very nature, international law can be interpreted flexibly and is slow to be enforced. We’re seeing the results in Gaza and Ukraine now.
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As the death toll of innocent Palestinians closes in on 30,000, Israeli Prime Minister Netanyahu and other government officials continue to claim those killed are merely “collateral damage” in the country’s effort to “eradicate Hamas.” 

In response, the International Court of Justice has issued a legally binding warning for Israel to avoid actions which may lead to a genocide, though the court stopped short of calling for a ceasefire. The attacks have not stopped, and Israel and its allies around the world continue to insist that actions in Gaza are in compliance with international law and its right to “defend itself.”

Meanwhile, many leading legal experts — including the current and former U.N. Special Rapporteurs for the occupied Palestinian territories — say that Israel has no such right to self-defense against a territory that it is occupying, nor does any nation have the legal right to unlimited, disproportionate force even while defending itself.

Netanyahu himself has rejected the ICJ’s interim ruling out of hand. “Israel’s commitment to international law is unwavering,” he said, dismissing the World Court’s legal analysis. “Equally unwavering is our sacred commitment to continue to defend our country and defend our people.”

Why is it that international law can be wielded in favor of what so many legal experts deem to be illegal?

Peter Brett, a senior lecturer in international politics at Queen Mary University of London tells Analyst News that the very nature of international law is that “it’s open to interpretation and states will come up with ways to justify their actions.” 

To understand this interpretive flexibility, we must understand the historical relationship between use of force and international law.

Israel’s closest ally, the United States, has historically used international law wherever and whenever it has been convenient. In the ’90s, the U.S. repeatedly sought authorization from the U.N. Security Council for its military interventions, namely in the Gulf War, Somalia, Haiti and Bosnia.

But no such authorization was even requested for America’s involvement in the Kosovo war from 1998 to 1999 — meaning it was illegal under the U.N. charter. The justification presented by the U.S. and NATO was that there was a humanitarian imperative to halt the conflict

Many scholars see this move as the beginning of using non-legal, “moral humanitarian code” within international law. Since this point, terms and legal conventions such as “humanitarian conflict,” “proportionality” and the “right to protect” have been used to justify conflicts. 

Take the principle of Responsibility to Protect. The international norm was adopted in 2005 at the UN World Summit, in response to the international community’s failure to respond to mass atrocities committed in Rwanda and the former Yugoslavia, which states: “Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” Yet this convention opens up an opportunity for any powerful state to act against a nation under the guise of this doctrine.

Unsurprisingly, the United States invoked its right to protect its residents post-9/11 and, in the pursuit of the War on Terror, legal scholars argue the U.S. broke and contravened several major international laws. The U.S. argued that the invasion of Iraq was legally backed up by U.N. Security Council resolutions, claiming Iraq breached a ceasefire regime in Resolution 687. 

In response, Russia argued that the U.S. had no such right and had in fact violated international law, as Resolution 687 did not allow the unilateral use of force without further resolutions. Yet today in Ukraine, Russia violates these exact laws

This example makes it clear, as does Israel’s relentless siege on Gaza, that international law is not respected, nor does it provide clarity in relation to using force against nations. 

When it’s in their interest to enforce international law, they will be very self-righteous about their behavior in condemning the violators. But if it’s in their interest to support the violation of international law, then they will either be silent or lend unconditional support to the government and country that is violation international law in the most extreme fashion.

Richard Falk, a leading international law expert, put it bluntly in an interview with TRT. The “double standards and moral and legal hypocrisy” demonstrated in the differential treatment of Russia and Israel “suggests that international law isn’t a framework for regulating states on some basis of equality, but it is a manipulated series of norms that serve the purposes of geopolitical actors,” he said.

“When it’s in their interest to enforce international law, they will be very self-righteous about their behavior in condemning the violators,” continued Falk, an professor of international law emeritus at Princeton University and former U.N. Special Rapporteur on Israeli violations of Palestinian human rights. 

“But if it’s in their interest to support the violation of international law, then they will either be silent or, in this case, lend unconditional support to the government and country that is violating international law in the most extreme fashion,” said Falk.

This does not mean that international law is entirely useless as a deterrent. “Typically, it does change behavior over time,” Brett says. “It often raises the price states have to pay for certain things they do, but it rarely stops them from doing it in the first place.”

Russia, for instance, continues to suffer from the economic withdrawals and sanctions of nations worldwide and has seen up to 1,000 companies curtail their operations in the country. 

Yet even that is not a universal experience: The U.S. never faced such sanctions, despite its invasion in Iraq being deemed illegal by the U.N. Secretary General in 2004

The divisiveness and inconsistent standards that come with international law are the result of its flexibility — born out of the nature of international law, which is that it cannot be directly enforced, nor is it clear. 

“International law’s effects are often slow, and it can’t be enforced straightforwardly,” Brett says. “This differs from many domestic legal systems where non-enforcement is only common for minor crimes.”

Without clarity of law and the inability for international law to enforce itself, the reason it then begins to benefit nations that take part in global conflict is because there is no control on what leaders can do. If countries like the U.S. are not seen to be held accountable after being responsible for contributing to over 250,000 Iraqi civilian deaths, then why would Israel want to follow laws that stop them from doing the same thing in Palestine? 

Brett says international law is an “expectation” and a guidance for countries to follow. But if its preachers fail to uphold its value, then who would then be able to hold perpetrators to true justice? 

As the late international law and human rights scholar Burns H. Weston wrote of the United States in 1987: “If we can force down a civilian aircraft over the Mediterranean on the grounds that it harbors a threat to our national interests, what is to stop the Soviet Union from doing the same thing over the Pacific for the same reason?”

With the lack of clarity, failure to enforce and the absence of global role models, international law finds itself in a state of limbo, serving as both a warning and benefit to perpetrators. 

But the bottom line is simple, if trite: If we cannot respect our own international law and order, then we should not expect others to follow it.

Sulaiman Manto studies politics at Queen Mary University of London.