The Critical Importance of International Law—An Analysis (6 June 2024) by Lawrence Davidson
I. We Are Replaying The Barbaric Past
In November of 2023, I posted an essay which sought to explain why, in terms of international relations, we are replaying a barbaric past. Briefly, here are the key points: A) The barbarity of World War II (WWII), particularly the Holocaust, was enough to scare most of the world’s nations into signing progressive treaties that limited state sovereignty. These agreements disallowed certain actions and policies, such as those that are now considered crimes against humanity. B) This progressive move also occurred against the backdrop of another post-WWII event—a process of decolonization. C) Yet, simultaneously (in 1948), the very colonial-like state of Israel was created in Palestine with the support of most European powers and immediately began to pursue policies some of which contradicted the behavioral codes of the new progressive treaties, D) Because of the legacy of the Holocaust, this contradiction was ignored by the victors of WWII, and thus Israel was not reigned in. Rather, it attained the financial and military support of the West to achieve its goals of creating a “Jewish state” in a territory full of indigenous Palestinians. E) Fast forward to today and we find that this choice on the part of the WWII’s victorious powers, along with continued deterioration of Israel’s behavior, threatens to destroy whatever potential is left in the post-WWII effort to institutionalize international law.
II. A Second Chance?
But hold on, it appears that the story is not finished. It seems that we (the world) have a second chance to uphold the rule of law. This second chance comes to us just because of Israel’s continuing barbaric behavior. That behavior has led, rather belatedly, to two actions on the part of the world’s most promising institutions of international law: A) “On May 20, the Prosecutor of the International Criminal Court (ICC), Karim Khan, announced that he was seeking arrest warrants for several top Israeli and Hamas leaders for war crimes and crimes against humanity.” In this regard it might be noted that while the behavior of the Palestinians might be “chargeable” there are certainly “extenuating circumstances” (like resistance to colonial oppression) to be considered. Not so for Israel, the behavior of which derives from its racist ideology. And B) The International Court of Justice (ICJ), having already found that Israel was guilty of “probable genocide,” has ordered that country to “immediately halt its … ground invasion of Rafah [and] demanded Israel reopen the Rafah Crossing with Egypt to allow in humanitarian aid and UN-mandated investigators ….”
These constitute tremendously encouraging first steps toward enforcing civilized behavior among so-called “first world” countries and their allies, i.e. Israel. It has been a long time coming. Somewhere along the line of recent history, the leaders of the first world, or the “developed world,” had forgotten that the barbarism that initially led to the establishment of world courts was of their own doing. After all, it was Germany that gave us the Holocaust, the Allies who carpet bombed Dresden, and the U.S. that dropped the Atomic bombs. However, historic memory is nothing if not selective. Thus, the purpose of the international courts got redirected to apply to other nations, but not to the “developed West.” An unnamed American politician tried to explain this to Karim Khan, that world courts were created to target “African nations and thugs like Putin.”
Karim, who knows some legal history, replied that the precedent for his action was the Nuremberg trials of Nazi leaders. He might have gone further and pointed out that the Nuremberg Tribunal at the end of World War II was, of course, also a product of the war’s victors. The selective application of the law during the post-WWII era, allowing first world nations to occasionally turn outlaw with impunity, was bound to eventually engender a crisis. Sooner or later, international law would have to treat all the world’s criminal governments equally, or there would be no international law at all, and we (the world) would again be on the road to international barbarism.
Nuremberg is an excellent, if ironic, starting point for taking legal action against Israel. For Israel, apparently acting out a kind of battered child scenario, is playing the role of racist persecutor while the Palestinians stand in for the once persecuted European Jews. The Israelis and their Zionist supporters (here read Joe Biden) can’t see this because they have been raised in an environment that has systematically erased the colonial nature of Israeli-Palestinian relations. Against this “raised in a bubble” background, they cannot understand protests against their criminality, except in terms of anti-Semitism—a process that allows them to identify the critic as the bad guy.
III. Enforcement
There is another, worrying side to this attempt at the revival of international law. Like any court-based judgement, there must be enforcement for the rule of law to have any meaning, and therein lies the rub. Take, for instance, the situation of the International Court of Justice. Certainly, it has found that Israel is carrying on a genocidal campaign in Gaza and has subsequently demanded that the Israelis cease their attack. The problem here is that the IJC, is an instrument of the United Nations. Therefore, its only path to enforcement lay through the UN Security Council—where the U.S. can exercise its veto.
In contrast, the International Criminal Court (ICC), is the product of a treaty, the Rome Statute, signed by 120 countries. Under this treaty they all have a legal obligation to take into custody any one for whom the Court has issued an arrest warrant. Neither the U.S. nor Israel are members of the ICC, but since 2015 Palestine is, and the Court’s indictment of Prime Minister Netanyahu and Defense Minister Gallant are for crimes committed in Palestine. As an Israeli official once put it, “the ICC is a mechanism with teeth.” The problem here is that there is no way for the ICC to force its member states to bite—that is to fulfill their obligations. Perhaps most will. But perhaps some won’t.
What both courts have going for them is a certain worldwide fear and trembling suggested by the present unfortunate trend to seek stability through autocracy. This trend comes after years of undermining the rule of law by first world powers such as the U.S.: the slaughter in Vietnam, the incessant interference in Latin American, the sanctions regime against Cuba and others, the hasty invasion of Afghanistan and the Bush Jr. misadventure in Iraq. A lot of the educated folks now ought to realize that they are standing at the entrance of a Hobbesian jungle. Letting America’s ally Israel have its way may be the final act. Walk through this door and life will turn once more “nasty, brutish and short” for more than just the Palestinians. Karim Khan described this as “the disintegration of the species.”
This scenario sets up the high stakes gamble that Israel and her supporters have caused the world—and that means all of us—to confront. As an anachronistic apartheid state, as a state that needs to pursue radical ethnic cleansing to fulfill its ideological mission, Israel cannot survive in a world made civilized by the rule of law. It can only survive in a world of states which know no other limitations than those prescribed by power. Keep in mind that, it is that open-ended, essentially lawless scenario that gave us the Holocaust and pogroms of the twentieth century. That same perceptual bubble of the Zionists mentioned above seems to blind them to the high irony of this situation.
IV—Conclusion
As the system of nation states evolved so did the notion of sovereignty. By the dawn of 20th century “there was no [higher] authority in a state aside from the domestic sovereign.” Under this arrangement a state authority could operate with impunity within its “sovereign” borders. Stalin’s Russia could fill up the Gulag; the U.S. could transfer its Japanese citizens to prison compounds while confiscating their property; and the Nazis could commence to make the German nation “Aryan.” All of this was to be tolerated as long the state authority stayed within its own borders. From the point of view of pre-WWII sovereignty, Nazi Germany’s ultimate mistake was to violate the sovereignty of another internationally recognized country through the waging of war—the invasion of Poland.
And don’t forget, the concept of open-ended sovereignty that existed prior to WWII was applied to a state’s colonial possessions. For instance, British possession of Palestine after 1918. Arthur Balfour, British Foreign Secretary in 1922, told the League of Nations that Britain had sovereignty over mandate Palestine by right of conquest.* This gambit allowed the British to ignore the political and civil rights of the Palestinians.
Do we want to go back to this past condition of national and international life? Unbeknownst to most of us, we are well on our way to such an end. If you are skeptical, just take a look at how the student protestors, demanding a civilized reaction to a genocidal war in Palestine, have been treated. The negative reception they have received throughout the West is an ill omen suggesting that your sovereign governments are lending themselves to barbarism. The future would be in much safer hands if the ICC and ICJ win the day.
* See Lawrence Davidson, America’s Palestine: Popular Perceptions from Balfour to Israeli Statehood (U. Press of Florida, 2001), page 42.
