Defending International Law While Gaza Is Being Erased

In his book On the Law of War and Peace, the Dutch jurist of the early seventeenth century, Hugo Grotius, asserted that even if all nations were united in a single will, they could not escape the law of nature—by which he meant the law of moral values and the sovereignty of reason inherent in human nature. Despite the Eurocentric and biased origins of international law, it gradually evolved to include the participation of all states. It reached a significant milestone with the United Nations Charter, which called for “saving succeeding generations from the scourge of war.” Its development continued—despite setbacks—to encompass human rights conventions and to elevate the individual to a status comparable to that of states, granting people the right to bring legal action against them in defense of their freedom and dignity.

Yet despite these advances, international law is still often regarded as little more than ink on paper so long as its rules are violated daily, the decisions of its courts remain unenforced, and the logic of “the strong devouring the weak” continues to prevail. Nothing illustrates this more clearly than Israel’s assault on Gaza and its actions against activists detained on the high seas—waters that Grotius, considered the father of international law, described in his work The Law of the Sea as a zone of free navigation whose sanctity may be violated only in limited circumstances, such as preventing the slave trade or piracy.

Many question the usefulness of international law, while only a minority disagrees. Skeptics possess countless examples that, in their view, demonstrate the impotence of international law: from Israel’s actions, which they argue violate Article 51 of the UN Charter and the requirement of proportionality between attack and response, to the breaches of virtually all human rights conventions, and finally to the disregard for the rulings of the International Court of Justice and the International Criminal Court.

The small group of optimists, however, sees matters differently. According to them, the very existence of rulings issued by international courts—and the exposure of Israel’s conduct—attests to the value of international law. It is the scale against which unlawful actions are measured and on whose basis condemnation is pronounced. How, they ask, could Israel be condemned if international law did not exist? In its absence, the only alternative would be the law of the jungle, which confers legitimacy upon brutality and killing. As one jurist famously remarked, international law is like gravity: invisible, yet undeniably present. Its existence compels parties in conflict to justify their actions before courts and in the media. If one party succeeds in ignoring its rulings, this does not mean that international law is dead; rather, it indicates that the law has fulfilled its role of issuing judgments—much as domestic courts do. After all, how many local court rulings remain unenforced because the perpetrator cannot be apprehended, because of favoritism, or due to temporary material incapacity? What we see in Gaza, therefore, is not the failure of international law but a clear failure of international politics. The International Court of Justice issued its provisional ruling, and the International Criminal Court fulfilled its duty by charging Israel’s prime minister and several ministers with war crimes. Yet former U.S. President Donald Trump threatened the court’s judges and refused to recognize its authority. The problem, therefore, lies not in international law itself but in those who obstruct its implementation.

International law has fully exposed Israel through its violations of the law’s values, provisions, and institutions. Supporters across the world have responded by taking to the streets—particularly in influential countries—to denounce Israel’s brutality and its breaches of international law. They have called for the prosecution of Israeli leaders and for boycotts of the state. This wave of popular mobilization draws its legitimacy from international law, which serves as the yardstick distinguishing right from wrong. It is also thanks to international law that the recent Arab (Saudi) initiative to recognize the State of Palestine is grounded in its principles and decisions, particularly regarding what are termed the occupied territories upon which a Palestinian state would be established. Likewise, several countries are bringing cases against Israel in international courts, while civil society organizations are pursuing legal action against around one hundred Israeli soldiers—perhaps more—accused of war crimes. Even Benjamin Netanyahu, who has repeatedly disregarded international law, recognizes its potential danger. When he agreed to former President Trump’s peace plan, he quickly called upon the Palestinian Authority to drop all lawsuits against Israel in international courts and to halt all prosecutions against Israeli citizens accused of war crimes. These demands themselves testify to the effectiveness of international law. As in domestic courts, evading justice or going into hiding does not nullify a ruling; the judgment remains like a sword suspended overhead. When the opportunity arises, the criminal is arrested and brought to justice. One need only recall the sight of Yugoslav war criminals—and the Serbian president himself—being led in shackles before the court after once boasting of their power and the protection of great powers.

Skeptics focus on the bleak present, while optimists look toward a brighter future. Yet both they and world leaders are called upon to reform the structure of the United Nations Security Council by expanding the number of permanent members and either abolishing or restricting the use of the veto. International law, despite all its shortcomings, is not meant to lead humanity to a promised paradise. As former UN Secretary-General Dag Hammarskjöld once said, its purpose is rather to save humanity from sliding into hell. This places upon humankind the responsibility to hold firmly to the principles of international law and to place them at the heart of political decision-making. At its core, the idea of law is to regulate human behavior, prevent chaos, and protect people from harm. Likewise, the mission of international law is to protect an unstable world from descending into catastrophe.

Source: Asharq Al-Awsat Newspaper