Farewell to the Rules-Based Order
As political analysts debate the reasons for Trump’s victory, one contributing factor is surely the utter failure of Biden’s Gaza policies. As the US has continued to fund an Israeli war of annihilation against Gaza, the democratic ticket became a hard sell for many who care about Palestinians. This proved decisive in key battlegrounds, particularly in Michigan. When they seek to explain the demise of the “liberal international order”, future historians may draw a line from Gaza all the way to Dearborn.
Yet, within the very framework of this moribund order, Gaza has also triggered a veritable renaissance of international litigation, including some of the most brilliant international lawyering in recent memory. Between Gaza and Dearborn, there was layover in the Hague. How should we understand this seeming contradiction between the death of international law and its magnificent revival? What can it tell us about what international law has been, and what it is today?
Below, I reflect upon such questions, concluding that the contemporary international law on mass atrocities functions as a kind of moral specter. I begin by showing that the tension between international law’s symbolic power and its practical impotence has deep historical roots in the very architecture of the liberal international order. With Gaza destroyed and Trump in the White House, this foundational tension may have reached a terminal point. And yet, I argue, the ghost of a rule-based order lingers in our political imagination despite its inability to shape outcomes. The sooner we accept the modest nature of international legal vocabulary, the quicker we can begin creating a new framework to prevent catastrophe.
Judicial authority and the rise of the liberal international order
For the lifetime of the liberal international order, judicial institutions have been at its centerpiece. This emphasis on tribunals goes back to the influence of Immanuel Kant: the idea of international adjudication was part of a vision of global peace within a framework of treaties, which was supposed to incrementally bring about an international federation.
After WWI, the League of Nations system with its Permanent Court of International Justice (PCIJ), established 1920, was the closest thing to a real-life rendition of this Kantian vision. Eight years later, the Kelogg-Briand pact aimed to outlaw war. In retrospect, Kelogg-Briand has often figured as merely an ironic note preparing for the most atrocious of wars, a decade later. The failure of the rule-based order of our own time was, somehow, foreshadowed at its earliest inception. Even so, in the postwar era, the dream of international organization reemerged with the UN Charter and the ascendance of formerly colonized nations to UN membership. The king is dead, long live the king. The crown jewel of the international legal system became the International Court of Justice (ICJ), also known as the “World Court”.
The liberal international order’s contemporary form solidified after the Cold War. For people of my own generation, this framing also furnishes a certain biographical narrative. My own first political memory is that of my grandfather, a German Jew, sitting in his Israeli living room and watching with tears of joy as the Berlin Wall fell. Children of the post-Cold War era, the ad-hoc tribunals for Rwanda and Yugoslavia joined the ICJ in the 1990s, paving the way for the International Criminal Court. One legalist ideology connects the dots from the PCIJ, through the ICJ, all the way up to the ICC. According to this legalism, international tribunals can, somehow, contribute to the peaceful settlement of even the bloodiest disputes.
As Trump’s campaign plowed forward, this ideology remained widespread, informing global policy and advocacy around Gaza. On the eve of the US election, the Haaretz editorial explained that Trump is “bad for the Jews and bad for Israel”. Among the editorial’s reasons was “the preservation of international institutions”: a liberal Zionist reason to join the old hope that international courts may contribute to peace and security. Interestingly, a vision focused on the same courts is also common to large parts of the Palestine solidarity movement.
Since the South African legal team brought charges of genocide against Israel in January, international courts have rekindled political imaginations everywhere. Suddenly, we were all captivated to screens, staring as lawyers from many nationalities argued eloquently, painfully, rationally, about how to respond to the violence in Gaza: How does the demand for provisional measures, and the sentiments as well as ideology it stems from, square with the political realities we have lived through?
A discipline of its own crisis
Within our lifetimes, the narrative of the ascendance of the liberal international order has run parallel to proclamations of its own demise. The latter have taken several forms – just as familiar as the progress narrative above.
After 9/11, the US illegally invaded Iraq – with catastrophic ramifications for decades to come, and with a trail of commentary about the prevailing global lawlessness. But it was not until after Russia invaded Ukraine in 2014, that two prominent legal scholars, Oona Hathaway and Scott Shapiro, proclaimed that the Kelogg-Briand framework was truly at risk. With words that now seem almost ironic, they warned of a return to a world “where might was right and war was legal”. In 2016, the first Trump administration brought the US’s withdrawal from the existing international framework on the most important issue of our time, namely, the Paris Climate Agreement. And, most recently, the pandemic revealed a failure to distribute vaccines, questioning the ability of international legal institutions to constrain greedy pharma in a global emergency. Each of these left a trail of diagnoses according to which international law has perished. Paraphrasing Hilary Charlesworth, international law became a discipline of its own crisis.
Yet, with the current crisis in Gaza, we are once again confronted with similar obituaries for international law, not only among lawyers but also among other observers. Pankaj Mishra has recently written that Israeli war crimes may end up relativizing the Shoah as a source of universalist outrage. Perhaps even more relevant, a Palestinian displaced from Gaza has recently written to me, in an email correspondence, that the Geneva Conventions have been buried under the rubble of his town.
We face a paradox: Gaza’s Nuremberg moment arrives just as international law appears to have died. Nuremberg was only made possible thanks to the enormous military power that was directed against Germany in WWII. No such might is coupled with Gaza’s rights. Why even bother engaging with international courts to begin with?
From the political centre leftward, we often hear one of two answers, both resting on the same underlying idea: international adjudication against Israel is so important because, at last, an actor directly funded by “the West” may be held accountable.
Within this group, a small minority of liberals have sincerely believed that international courts’ pronouncements could impose a limitation on Israel’s violence. This was not true when the U.S. invaded Iraq. It has so far not proved true about the war in Ukraine. But hey, we are allowed to hope. The sentiment was perhaps more tangible in January and February than it is right now. Back then, some of us – myself included – believed that the Court’s provisional measures could contribute to a stable ceasefire. I hoped ICJ measures would become tools of imperial power, enabling Biden to impose a political solution. Undemocratic perhaps, but preferable to genocide. So far, this has proved catastrophically wrong.
The other answer, which I think is more common farther to the left, is that even if its provisional measures are left unenforced, the ICJ may help expose Western actors’ hypocrisy. This “expressive” theory is that even if it becomes clear that the U.S. does not live up to international rules, that will ultimately present a certain victory for Palestinians. Finally, it will be plain for all to see that the international system is deeply broken. This “Emperor’s New Clothes” moment will force a radical transformation of the discipline, which will be pushed in an egalitarian direction. Formerly colonized states may truly take power. Palestine will be pushed closer to liberation.
But this argument too is highly problematic. Essentially, it rests on the idea that international law is indeed a kind of king, or at least a quasi-sovereign global power. That is of course false. It’s not only, as Audre Lorde has said, that you cannot use the master’s tools to dismantle the master’s house. Rather, the master left the house, bought a mansion, perhaps on some offshore tax haven, and couldn’t care less. Will Trump give a damn if the Peace Palace is pulled apart? Formerly colonized states will not be able to take power from international legal institutions, simply because the power does not reside there.
To show hypocrisy, one must direct their attention to an actor that is engaged in misrepresentation or in bad faith behavior. Bad faith behavior was perhaps what Bush’s lawyers engaged in when they authorized a torture program. But today we are confronted with something entirely different. No one in the corridors of global power, perhaps with the exception of some relatively unimportant European capitals, is even bothering to put up the show. Timo Lehman, Der Spiegel’s Brussels Correspondent, posted that “As of today, Ursula von der Leyen is the leader of the free world.” With little name recognition beyond Europe, and even less understanding of her role, such a suggestion merely rings comical.
The opportunity and risk of international law as a moral vocabulary
And yet, as we have watched the ICJ’s provisional measures go unheeded, a curious thing has happened. With Israel’s recent forced displacement of Northern Gaza, mainstream analysis of the situation seems to have moved to the direst of all directions. Many who have been skeptical of the gravity of the legal accusations against Israel, are coming around to a reassessment of the scale and the magnitude of annihilation in Gaza.
Even without its material basis in arms or money, the law is therefore still serving as a set of moral signposts. With no other set of terms available, within a particular cultural context, the law offers the go-to set of distinctions for understanding degrees of systematicity in killing. My own experience as a boy watching my grandfather is part of what has made this cultural context, to some extent, my own. I refer to two symbolic aspects of his experience: his escape from Nazi persecutors, and the life he built as a citizen of a world shaped by America.
For members of my generation, but not only for us, the international legal framework has provided vocabulary for articulating a moral set of priorities: what makes certain acts particularly egregious, why certain patterns of violence are especially concerning, and how bureaucratic rationalization can mask murderous intent. Terms like grave breaches, crimes against humanity, and genocide, still help us name what we’re seeing.
This emphasis on ethics does not mean that the framework is perfect. It is imbued with political interests and with violence, as is the making of each of its categories. But alongside violence it also serves as a source of meaning. The emphasis on ethics also doesn’t mean that questions of interpretation or even adjudication should now be out the window. There have been many cultural contexts in which interpretations of rules have set an ethical framework for members of the relevant communities through a mixture of voluntarism and social pressure. Sometimes, such communities even have their own courts.
We use this language at our own risk. Failing to recognize its moral rather than enforceable nature exposes us to criticism: misleadingly representing our own preferences and pretending they are binding rules. Despite the fact they represent a Global South state, I am concerned that members of South Africa’s legal team are also exposed to this criticism. This is because they have brought to Court demands that are unenforceable.
Within Israel, and elsewhere, this criticism has a slightly different spin. It has become a ubiquitous class-based charge against legalist elites who seek to circumvent the need to explain themselves in terms everyone can understand. The critique is not only legitimate, but often accurate, and its underlying point is neither new nor necessarily right-wing. The critique of elite legalism has been out there ever since Bentham’s takedown of the common law tradition as masking the desires of judicial elites behind the smokescreen of precedent.
Moral agendas conveniently disguised as binding rules will become ever easier to ignore, as the blind-sighted chatter of a self-appointed priesthood. International law concerning mass atrocity is a kind of moral ghost, both nourishing and haunting our political imagination, but without the ability to directly affect material reality. The sooner we acknowledge this, the sooner we might begin the hard work of reconstructing a framework that can actually constrain state violence in our current fragmented world.
Thanks to Lena Salymeh and the history department at ETH Zurich, particularly Monika Domann and Zoé Kergomard, for the conversations that led to this blogpost.
