International law and failure in the context of Gaza

by | 2 Apr 2024

A few days ago a discussion developed on Twitter (as these things do) about whether Gaza (and specifically the failure to prevent or halt the ongoing genocide) signals a failure of international law. Many of the responses seemed to be saying a similar thing, mainly, that what we are witnessing is a failure of political will, and not a failure of law. I engaged briefly with the Tweet (saying that whether international law has failed depends on how we perceive success or failure of law – as liberation, justice or discursive reproduction), but the discussion prompted a deeper reflection on what success of international law would look like in the context of Palestine. Below, I explore a number of potential answers. 

A ceasefire

The UN Security Council adopted Resolution 2728 (2024) on March 25, demanding a temporary ceasefire in Gaza for the month of Ramadan. Immediately a discursive battle ensued, with the US claiming that the resolution was vibes-only and non-binding, and a number of states in-turn insisting that it was in fact, very much international law, and therefore binding. Regardless of its legal status, more than 100 Palestinians were killed in the subsequent 48 hours. There is also something strange about a temporary ceasefire for the month of Ramadan. A two-week halt, before the mass murder continues. A pause to let people pray. Except of course, mosques have been destroyed; there is no clean water for either abdest or to break one’s fast; and there is no food. No bombs is always better than bombs, but no bombs does not translate into a dignified Ramadan, and so the provision feels performative. 

In a sense this kind of ambiguity is likely to follow any ceasefire: a stop in fighting is unquestionably a good thing, in that it saves lives and ensures release of the hostages. But a ceasefire now is also a ceasefire five months too late; a ceasefire 30,000 dead Palestinians too late. A ceasefire now is a ceasefire that did not happen after the Al-Ahli hospital was bombed, or after all the hospitals were bombed, after babies decomposed in the Al-Nasr hospital ICU, or after doctor after doctor spoke of children having their limbs amputated without pain relief. It would be a ceasefire that did not happen after Hind Rajab was trapped in the car with her murdered relatives calling for help, her whereabouts unknown for days; or after it became clear that Israel had targeted the ambulance that was going to save her. It would be a ceasefire that did not happen despite hundreds of videos of parents grieving their dead children; of children covered in dust and blood and paralyzed by shock sitting alone, as sole survivors of whole family trees. A ceasefire now answers the question that many of us asked at the start: how many Palestinian deaths until Israel’s right to self-defence is no longer limitless? 

My point here is not just that a ceasefire now is too little too late; it is that the damage caused, and the trauma suffered and the destruction of life as it was known in Gaza is so profound that a ceasefire, while necessary, seems a little bit like putting a single band aid on 100,000 bullet wounds. And it is difficult to imagine what an adequate redress would be for the harm caused. 

In her report, which she presented to the Human Rights Council on March 26, the Special Rapporteur on the state of the human rights in Palestine, Francesca Albanese, recommends that Israel and states complicit in the genocide ‘acknowledge the colossal harm done, commit to non-repetition, with measures for prevention, full reparations, including the full cost of the reconstruction of Gaza’. She further recommends, in the short term, deployment of an international protective presence ‘to constrain the violence routinely used against Palestinians in the occupied Palestinian territory’, and in the longer term a development of a plan to end the ‘unlawful and unsustainable status quo constituting the root cause of the latest escalation.’  The final point is ambitious, although it is not entirely clear from the Report which, precisely, aspect of the status quo the General Assembly is meant to address: the apartheid (suggestion is made to reconstitute the UN Special Committee against Apartheid); the occupation; or the settler-colonialism (which Albanese sets out as relevant context for the genocide at the very beginning of the Report). What is unsustainable may not be unlawful; and what is unlawful may not be a root cause. Addressing unlawfulness then might very well not result in any meaningful form of justice.  And so even if the legal demands set out in the Report could be met, that might not translate into a success story about justice and liberation. Success of law is then, quite distinct from a victory for justice. 

Finally, if a (permanent) ceasefire resolution were to be passed, celebrating this as a success of international law risks obscuring the role of mass political mobilization and organizing, which significantly increased the stakes of continued inaction for political leaders in the Global North. Never forget that Keir Starmer, a human rights barrister and a leader of the Labour Party, went on LBC in October and claimed that Israel has the right to withhold power and water from Gaza. When Labour finally called for a ceasefire four months later, it was not because the law changed; it was because their position had become politically untenable, and Starmer was facing an ever-growing rebellion by his frontbenchers

A finding of genocide by the International Court of Justice

In December South Africa brought a case against Israel, under the Genocide Convention, before the International Court of Justice (ICJ). In January, in what must have been one of the most live-streamed sessions, the Court found that it was sufficiently plausible that Israel was committing a genocide in Gaza to order a set of provisional measures aimed at halting the potential breach of international law, until the case can be decided on merits. 

What I found interesting at the time (in both my own reaction to the provisional measures, and that of colleagues) was the sense that the order of provisional measures was a good thing. The reaction was strange, if for no other reason than the fact that it was already at that point clear that Israel was comfortable breaching international law (one might argue that this has been clear for some decades now). My excitement seemed to be more about the fact that international law, a thing I had invested quite a lot of time and energy into studying, was finally doing something, than it was about the possibility of this something having a tangible impact on the situation in Gaza. I had no expectation that international law would help, but it was nice to see it try. Grietje Baars has written brilliantly about a sense of alienation from one’s critical self, during this brief moment of critical lawyers’ deep investment in the liberal international legal order. 

And while the provisional measures have not materially changed the situation in Gaza, that does not necessarily mean that they were a failure of international law. What the ICJ provided was a benchmark against which to judge Israel’s subsequent behavior; and a legal alarm bell to ring. When the UNRWA was defunded, UN experts warned that states’ failure to provide humanitarian aid to Gaza could amount to aiding and abetting of genocide; in his account of the famine in Gaza, Michael Fakhri, the Special Rapporteur on the Right to Food, also made reference to the ICJ case; and in her report to the Human Rights Council Francesca Albanese argued that Israel ‘appears to have failed to comply with the binding measures ordered by the ICJ on 26 January 2024.’  The measures have then been useful as a rhetorical device. I would also argue that more than this, they have been useful for discursive reproduction of international law, despite its abject failure to alter material reality. 

The ICJ Order itself heavily references UN agencies and observers, and their reports of human rights abuses from October through to January. Textually, the order then reproduces much of the facts that had been established by various UN bodies. This act of reproduction gives value to the observations: they go from being a form of inaction (watching genocide happen), to being a form of action (documenting genocide happen). Similarly, the ICJ Order, which did not result in a better humanitarian situation on the ground, has been subsequently referenced in UN reports and media coverage, as a way of saying – what is happening is a breach of the provisional measures, it is unlawful, and therefore wrong. The issue with this, of course, is that what is unlawful becomes our definition of what is wrong; and conversely, it becomes increasingly difficult to articulate as wrong that which is not unlawful. Legality displaces both ethics and politics, and becomes a (very conservative) benchmark against which to judge the conduct of hostilities. And the becoming of the benchmark is interpreted as an action of law, as its doing of something. This ability to maintain discursive relevance, despite abject failure (as evidence by the mass murder of 30,000 Palestinians) is both essential for the reproduction of the field, and ensures that widespread injustice at no point threatens the reproduction (and therefore existence) of the legal system. The magic of international law is that it turns every fiasco into a prelude to its own success story. Yes this awful thing happened; but look how we punished it, look how we learned from it. 

So, if five years from now, the ICJ does find that Israel has committed a genocide in Gaza, I would be reluctant to call this a success. Especially if Gaza is still an open-air prison; if Palestine is still occupied. Or, in calling it a success, we (international lawyers) should be clear that it is a victory of law for law; not for justice, and certainly not for Palestine.

A brief conclusion   

What emerges from these two legal interventions that I briefly explored is that success of international law should not be conflated with either justice or liberation. This seems like a basic point to make (and in many ways it is), but I do think it is worth reiterating, because as a discipline we have an investment in the thing that we study and practice; an investment (at the very least) in its continued relevance. But our attempts to make law seem active, seem a crusader for justice, are not neutral, they are deeply ideological; they enable the consistent reproduction of the discipline, of the good, the bad, and the ugly; of its many injustices. And they leave those who bear the brunt of law’s failures alone in their disillusionment and anger. 

Bio: Marina Veličković is a Leverhulme Early Career Fellow at the University of Warwick, UK where she is researching the role of international law in (re)producing structures of violence. She holds a PhD from the University of Cambridge and an LLM in Public International Law from the London School of Economics.

6 Comments

  1. This article is written by someone who has already decide what side they are on and what principles should apply.
    In the context of this article it may be helpful to clarify what constitutes law. Law is a set of rules that can be enforced by a policeman. No police, no law. Period.
    What we have is a set of international conventions. Conventions may be put to one side or ignored if it is convenient to do so. Sovereign states, which internally have rules and police to enforce them, frequently break or ignore international conventions. These conventions are frequently used by some states as a political tool. Such usage should be recognised as politics; not law.

    In this case of Israel an external enemy invaded their country, slaughtered hundreds of their citizens and kidnapped a few hundred more. This enemy was an organisation called Hamas; this organisation may be described as a terrorist organisation or as a rogue state. Any sovereign nation faced with such an organisation will attempt to control; or eliminate it.

    If Turkey invaded Greece, killed thousands of thracians; kidnapped hundreds of others, and promised to continue this activity indefinitely; the global response would be an outpouring of support for Greece.
    Hamas can, at any time, apologise for the atrocities committed, in its name, on 7th October,2023; return all the remaining hostages; identify and bring to trial the perpetrators of the massacre; and undertake to cease its attacks on Israel. Until they do this the Israelis have no choice but to continue an endeavour to destroy Hamas.

    There are horrifying consequences for the civilian population of the Gaza but, if Hamas wishes to conduct a war ; then such is war.

    Using such notions as “International Law” is placing a sticking plaster over what is nakedly a political problem and which, eventually, will have a political or military solution.

    The use of disingenuous language such as “genocide” , “mass murder”, and even the term “International Law” itself is not insightful or helpful.

    Reply
  2. It seems that our friend Charles has already made up his mind about the Israeli operation in Gaza.

    He has no time for the Palestinians and the illegal actions of the Israeli colonists who have slaughtered Palestinians for more than 75 years, and kept them in an “open air prison” aka Gaza.

    One thing we can agree on is his statement of the obvious-International Law is basically used, or not, politically in many instances.
    Where we disagree is where we rejcct his simplistic account of what law is. His positivist notion of law-a policeman with a club-is too ridiculous to be taken seriously.

    Reply
  3. I too am concerned about the discursive reproduction of international law which still has not altered reality, and find myself also with a sense of alientation from my own critical self that Marina Veličković describes – so I welcome this bold speak and insightful analysis from a fellow academic.

    Reply
  4. Thank you Gill. Occam’s razor should apply. “Simplistic”? Please explain the utility of a concept of law that has no means of enforcement.

    As to the historic background of the Israeli /Arab conflict I believe that there is no “right’ or “wrong’; an insoluble nightmare! I have no “brief” for either side but it is a tragedy for both.

    The kind of verbiage which this article exemplifies simply confuses issues; provides a justification for for all sorts of political stances; and opportunities for grandstanding and virtue signalling.

    Obviously there will be an outcome; but it will be based on either a political or military solution. Dressing these up in fairy-tales of International Law may help some of the commentariat in dealing with the outcome but will not affect the realities.

    Reply
  5. If we apply the principle of the equality of all humanity, we might find ourselves asking: “Why then does Israel exist? Israel was formed when some foreigners claiming their ancestors had lived in such-and-such a land, invaded it, drove out the original inhabitants, and took over.” This puts “Any sovereign nation faced with such an organisation will attempt to control; or eliminate it.” in a different context, doesn’t it? Any sovereign nation – that is what Arabs refer to when they refer to themselves as the Arab Nation, faced with such an organization – which is how the Arab Nation views Zionism and the Zionist organizations, as a bunch of terrorists. Of course the Arab League attempted to eliminate Israel in 1948. The stories of the refugees was all through the Arab street – it was that or be overthrown. Charles Shackerley-Bennett is ovciously no stranger to providing verbiage. If he could engage brain before mouth, he might one day be convincing.

    Reply
  6. Thank you Wesley. When I engaged my brain on this subject I tried to be careful not to discuss the entire historical context of this tragedy. An attempt to establish “justifiable cause”, “blame”, or “rights” leads to in-exhaustible discussion. As the Americans like to say “we are where we are”. Looking into the future, if we want our politicians to make rational decisions which might, just might, help to resolve the conflict then we must persuade them to start from a practical, realistic position. My argument here is that decisions made on the putative value of international law, as this original article implied, will not be helpful. I re-iterate the solution will be either military or political. If you disagree with this position I would be very interested in exactly how you believe a legal solution can be determined, and more importantly, how it is to be enforced?
    Regards. Charles

    Reply

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