Never Again. And Not Quite.
Those who build new public law act with the past hovering over their shoulders. Rejecting regimes of horror explains much of the content of new constitutions. Aversive constitutionalism – in which constitutionalists overtly steer away from a country’s appalling pasts – guides how they understand these new texts. Michaela Hailbronner and I sparred in friendly fashion over just how powerful the Nazi past was in channeling the direction of the post-war German Federal Constitutional Court. We both agreed it mattered, albeit in different ways. On balance, even among those who disagree over precisely how the past is memorialized as “never again” in new constitutions, evidence shows that the horrors of the past influence public law in the present much more than do the dreams of some ideal future.
After the twin 20th century catastrophes of fascism and communism, the spirit of “never again” also profoundly altered the shape of international law, ushering in a new and central role for the individual in a world of states. The list of rights that were compiled in the Universal Declaration of Human Rights, before being split into the twin conventions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, tracked the specific horrors of Hitler and Stalin, inverting their flagrant abuses of human dignity into new protections for fundamental rights. The international law of genocide, crimes against humanity and war crimes are also now carved into hard law, protecting vulnerable populations against targeted harm and condemning industrially organized death machines, political judges and show trials. “Never again” law is designed to create clear and hard prohibitions where none previously existed.
As Robert Jackson said in his opening statement at the first Nuremberg trial, the war’s victors submitted the vanquished “to the judgment of the law [as] one of the most significant tributes that Power has ever paid to Reason.” “Never again” meant substituting reason for passion in responding to atrocity so as not to multiply the atrocities.
If any new leaders now repeat the Hitler or Stalin script, an international chorus backed by law should cry out to hold them accountable for committing what are now clearly international crimes. Perhaps it will even stop them before they get very far. The law of “never again” is now real enough that rogue regimes like Russia, Myanmar or China put themselves beyond the most obvious reach of this law, perhaps to prove the point.
As a result, today’s new aspirational autocrats know that they cannot build new gas chambers or deport whole populations to a distant gulag or call out the secret police against their own populations or imprison without judicial process all those whom the government has singled out as “vermin” – or at least they cannot do this and remain in the good graces of rule-of-law abiding states. “Never again” law promises to protect potential victims against a repeat of these horrors.
But what if new autocratic leaders learn a different lesson from the atrocities of the 20th century? What if they learn that, if they act where the law is fuzzy, unenforceable or non-existent, they can get away with almost anything? Aspirational autocrats could see in Hitler’s ascent that even dangerous leaders can rise to power if only they follow the law in the earliest stages of their rule. They might have also learned from Stalin that law can be used instrumentally to achieve ideological goals because it is far easier and more predictable to run a state by law than to rely on the revolutionary zeal of one’s followers. Both Hitler and Stalin wielded law as weapons. Their legalism was designed to ensure that those who experienced their rule discounted their queasiness at what they saw with their own eyes. After all, what they saw was legal. Comforting those who had qualms with the soothing assurance of legality, authoritarianism set down roots. It almost worked. While some (but surely not all) of Hitler’s men sat in the dock at the end of the war, Stalin’s men sat in judgment.
And so here we are again in a situation where the cover of legality hides the actions of states that are doing unspeakable things. While the violation of “never again” law should act as a trigger for international outrage, a new form of “not quite” law hides appalling conduct behind a mask of reasonable legality. Unlike “never again” law, “not quite” law allows countries to get a free pass for doing something that looks acceptably legal, while undercutting the purposes of that law at the same time.
Let’s start with the easy case, Viktor Orbán’s Hungary. With his two-thirds constitutional majority victory in the election of 2010, Orbán and his minions changed the constitution, rewrote vast swaths of Hungarian law, captured key institutions and altered the election law so that no one else could win a subsequent election. In doing so, Orbán became the master and model of “not quite” law. His new system for electing constitutional judges by a two-thirds vote of the parliament mimicked the way that Germany elects its constitutional judges. But because Orbán’s party won two-thirds of the requisite seats which no postwar German party has ever done, the election was “not quite” the same. When Orbán privatized most of the public universities by donating public property to private foundations, just as Finland had done, he copied a perfectly reasonable model. But because the governing boards of the newly privatized universities in Hungary were packed with governing party loyalists who are now destroying academic freedom, the reform was “not quite” the same.
The new autocrats now deploy what looks like reasonable law in “not quite” the same way so as to achieve unreasonable ends under cover of legality. As long as the new autocrats don’t bring on the deluge of international criticism by violating “never again” law, but instead dance between the raindrops of this international consensus, autocratic legalism enables power to be consolidated in fewer and fewer hands.
That brings us to the hardest case because it occurs in the shadow of the Holocaust which generated the “never again” promise in the first place: the creeping onset of autocracy in Israel, something not halted but intensified by the Hamas attack and subsequent war.
It should go without saying that the attack of 7 October 2023 by Hamas terrorists against Israelis, killing 1,200, injuring more than 2000 and taking nearly 250 hostages, deserves universal condemnation. The massacre of 7 October was the single largest mass murder of Jews since the end of WWII, triggering Holocaust trauma. Such a brutal invasion, with civilians bearing most of the brunt and hostages still in captivity seven months later, demonstrated that the international promise of “never again” had failed. Most Israelis are still frozen in that moment, their pain blocking out everything else.
The Hamas attack had occurred against the backdrop of domestic autocratic consolidation in Israel in the months preceding the attack. In spring 2023, the newest Netanyahu government – this time propped up by a rogue’s gallery of far-right supporters – had set out to destroy the independence of the judiciary and to eliminate many checks on the power of the prime minister, all by deploying “not quite” law. The “judicial override” borrowed from Canada was proposed without the corresponding Canadian safeguards; the “reasonableness” standard for administrative acts, once borrowed from England, was abolished without installing the UK’s compensatory checks on power. Israelis had taken to the street in large numbers across the political spectrum to protest. But when Israel was attacked by Hamas terrorists, fighting autocracy took second place to fighting Hamas. The judicial “reforms” dropped out of the headlines as mass protests dwindled.
But the war against Gaza has not stopped the Netanyahu government’s autocratic consolidation. Rather, the war has masked new power grabs. Indeed, as constitutional scholar Yaniv Roznai has shown, “the judicial overhaul continues with all its might.” While the new legislation that would have changed the composition of the Judicial Appointments Committee failed, Justice Minister Yariv Levin has used his power as chair of that committee since 7 October to block appointments of anyone that his government does not support by cancelling or postponing meetings, preventing votes on pro-democratic candidates and changing the committee’s operating rules to allow his minority faction to assert de facto control of the committee. The legal opinions of Israel’s independent attorney general Gali Baharav Miara have been bypassed while the government hires private counsel to defend its views in court. The government is dragging its feet in complying with the judgment of the Israeli Supreme Court on the requirement that ultra-Orthodox men serve in the military. The government’s far-right ministers are packing advisory boards and policy-making bodies with their own supporters. In the meantime, far-right national security minister Itamar Ben-Gvir has shuffled the leadership of the police to make it respond to his wishes, which includes the brutal treatment of government-critical demonstrators, particularly the families of the hostages. The government is continuing its autocratic consolidation by using its legal power of appointments while deploying rule-fiddling and foot dragging on legal compliance to avoid full application of prior law. The Israel Democracy Institute is tracking the myriad of worrisome changes here.
Against this background, it is important to remember that, right after 7 October, the world united around the protection of Israelis and Jews around the world to once again pledge “never again.” The Brandenburg Gate, 10 Downing Street, the Sydney Opera House, the Berlaymont headquarters of the European Commission in Brussels, a giant screen in Kyiv and many more world landmarks all displayed the Israeli flag in solidarity. In the weeks right after the 7 October attacks, Israel had more world sympathy and support than it had perhaps ever had in its history.
When the inevitable Israeli military response to 7 October came, Article 51 of the UN Charter recognized “the inherent right of . . . self-defense if an armed attack occurs against a Member State.” When Israel was questioned about its tactics as the Gazan death toll rose sharply, Israeli military spokespeople assured all that Israel was doing what it could to minimize civilian casualties, laying the blame at the feet of Hamas for using Gazans as human shields. In press conference after press conference, Israeli military officials insisted that they were following the law of war – warning Gazans to evacuate areas subject to military attack, bombing usually off-limit targets like hospitals only when there was evidence of Hamas infiltration, using precision munitions to attack targets carefully identified by Israel’s prodigiously all-knowing security services and in general acting proportionally. Like Viktor Orbán’s consolidation of power under cover of law, Israel’s campaign against Hamas has also been scrupulously justified as legal at every step.
Netanyahu, however, is still determined to stay in power for the foreseeable future and many believe that he has dragged out the war to avoid a day of political and legal reckoning. (He’s not alone; Hamas leadership also is willfully prolonging the war.) But, like the “not quite” laws that Orbán and Netanyahu have both used to consolidate power, the international law that Israel has invoked to justify its actions in Gaza is designed to provide public reassurance that, because everything is legal, there is nothing to see.
And yet virtually all observers on the ground in Gaza have been shocked by the indiscriminate bombings, mass casualties and a population of more than 2 million people starving to death, with little access to fresh water, sanitation, adequate housing or basic medical care. Israel controls all of the entry points to Gaza. Its military campaign has destroyed Gaza’s civilian infrastructure and displaced more than 1.7 million people, many multiple times over. Aid agencies, Gazan journalists, UN monitors, volunteer medical staff and neutral charities – all agree that the situation in Gaza is dire. The death toll in Gaza as I write is over 35,000. By now, the system for recording deaths has broken down with the destruction of most of Gaza’s hospitals so it is hard to know what the numbers really are. And bodies under the rubble have still not been counted in any event.
It is therefore hard to square what reasonable observers see with their own eyes with what the law of war counsels, however often we are assured that the law of war is scrupulously followed. Behind the scenes, we learn from IDF sources that much of the targeting of Hamas fighters is being done by artificial intelligence with little independent assessment and that the rules of engagement permit 100 civilians to be killed to assassinate just one Hamas commander. Kill strikes are aimed at the homes of suspected terrorists even when their relatives are present, which accounts for why so many extended families have perished at once. The more one learns about the IDF’s rules of engagement and the methods they are using to attack their targets, the more inescapable is the conclusion that the law of war invoked by the Israeli government is “not quite” law.
One of the greatest monuments to “never again” is the creation of international criminal law, providing punishment for those who have committed genocide, war crimes and crimes against humanity. The irony is lost on no one that the International Court of Justice issued provisional measures against Israel for “plausibly” violating the rights of Gazans that are protected under the Genocide Convention, the only international treaty that Israel has ever signed without reservations because it was the ultimate legal memorial to the Holocaust. Can it be that a once-victimized population cannot imagine itself as the perpetrator of the very crime that forms such a crucial part of its modern identity? Do the mere assertions by Israeli officials in the face of overwhelming evidence succeed in creating the illusion that Israel is following the law of war? Does the law of war permit Israel to flatten Gaza and take tens of thousands of civilian lives in the process?
The most direct descendent of the Nuremberg Tribunal, the International Criminal Court, has now been asked by its chief prosecutor to issue arrest warrants not only against the Hamas leadership for the massacres of 7 October but also against the Israeli Prime Minister and Minister of Defense for ordering the subsequent siege of Gaza which has caused tens of thousands of civilian deaths. As Prosecutor Khan’s statement in support of the warrants noted:
Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.
Right after 7 October, the Israeli government’s actions reflected the rage of victimization. The world understood its pain. The Hamas massacre reawakened the Holocaust trauma and triggered a renewed sense that Jews had to fight for their survival yet again. The “never again” promise of international law had failed to protect Jews from slaughter. So where should we go from here?
A stark choice confronts the international community. It can either double down on “never again” law – making its violations more consequential, reassuring all historically persecuted and oppressed people that law is their ally and ensuring that law defends those who are vulnerable to attack – both Jews and Palestinians. Or it can look the other way in the current war in Gaza, in which the appearance of legality is used as a cover for both the autocratic power grab that is still going on within Israel and the public face that Israel has presented to the world to buy time to operate with impunity. If we opt for the latter, the law of “never again” will be fatally weakened by the law of “not quite.”