International law should restrain military aggression, help punish wrongdoers, and provide some guidance to conducting warfare ethically. In Ukraine and Gaza, international law seems to be doing none of these things. And yet these conflicts still underscore that international law is what we have and, more than ever, strengthening it must be a moral and political priority.
International law is omnipresent in public discussions of Russia’s war in Ukraine and Israel’s war in Gaza. Everyone—from world leaders to the press to ordinary people on social media—speak about a state’s right to self-defense, the need to ensure war crimes are not committed, and to guarantee the jurisdictional reach of international courts when they are. Given how much international law is discussed in the context of war, we expect it to constrain its reality. But, for three reasons, the wars in Ukraine and Gaza appear to demonstrate the weakness of international law.
First, these wars have caused unimaginable horrors but world leaders have co-opted the language of law to defend them. Russia has offered legal justifications for what is evidently a war of aggression, which threatened Ukraine’s survival and has killed tens of thousands of Ukrainians, wounding and displacing many more. Israel, in contrast to Russia, has a plausible claim to be acting in self-defense. But it continues to violate the laws of war in its response to the Oct. 7 Hamas attack that left 1,200 people dead. Israel’s military maintains the legality of attacks that destroy hospitals, schools, and places of worship—attacks that have killed at least 25,000 people, most of them women and children. Military operations that are causing catastrophic starvation are argued to meet the rules of conducting warfare. The reality of these wars seems to suggest that international law legitimizes rather than limits violence.
Second, the International Criminal Court (ICC)—created in 1998 to hold to account those who committ war crimes, crimes against humanity, or genocide—prominently investigates but has not punished wrongdoing in these conflicts. The second anniversary of the Bucha massacre—which saw hundreds of Ukrainian civilians tortured, raped, and killed—is approaching but none of the perpetrators been brought to justice. The ICC’s unprecedented step of issuing an arrest warrant against a sitting head of state that is a permanent member of the U.N. Security Council has barely inconvenienced Vladimir Putin. The ICC’s Prosecutor Karim Khan has spoken out against Hamas’s Oct. 7 attack as well as Israel’s use of force in Gaza. Yet the prospect of arrest warrants has not prevented indiscriminate attacks against Israel nor by it. Israel has moreover failed to meet its obligation to allow humanitarian relief into besieged Gaza. Hamas has failed to release the hostages. All of this has fueled a belief that international law is impotent.
Finally, across these two conflicts, the discussion of international law is inconsistent and in tension with common-sense ethical judgements. Despite the obvious differences between the wars in Ukraine and Gaza, the Biden Administration has equated sending arms to both Ukraine and Israel as part of a global struggle between democracy and autocracy. The head of the European Commission, Ursula von der Leyen, has condemned Russian attacks against civilian infrastructure in Ukraine, almost in the same breath as expressing steadfast support for Israel as it destroys the last working power plants in Gaza and renders the Strip almost uninhabitable. Uncritical support for Israel fuels the charge, widespread in the Global South, that the West invokes international law only to constrain “the rest.”
When legal arguments follow political rather than ethical considerations, as the Biden Administration and European allies are doing, can law still help us make sense of the world? Ukraine and Gaza have created a crisis of confidence in the project to constrain war with international law, but dismissing it outright would be a grave mistake.
For starters, it is crucial for us to understand the purpose and scope of international law. International law does not prohibit all actions that we rightly consider abhorrent. It can’t because war cannot be waged without morally unjustified violence. If law prohibited all morally unjustified violence, it would make waging war impossible, and war would revert to being a much more dangerous law-free zone. Neither can international law “end impunity” in war, as the creators of the ICC unwisely promised. Wrongdoing pervades war, war pervades geopolitics, courts must be selective, and punishing people for violations takes time. Crucially, in domestic societies, we think of legal accountability as worthwhile even if it does not deter wrongdoing in the first place and criminals are not brought to justice. The first remedy to the crisis of confidence in international law is a more realistic understanding of what law can do in war. Law cannot turn war into anything other than a violent moral catastrophe. But international law can and does make war less awful than it would otherwise be.
That is certainly the hope many had for South Africa’s case with the International Court of Justice (ICJ) accusing Israel of violating the genocide convention in Gaza. While the ICJ fell short of ordering a ceasefire in its preliminary ruling on Friday, it did determine that the charge of genocide was not implausible and ordered Israel to provide aid to Gazans. Whatever one makes of the ICJ ruling, it is a mistake to forgo law’s ability to prevent some morally unjustified violence because it fails to prevent all or even most of it.
A realistic understanding of international law’s limits and an appreciation for its achievements are not enough to overcome this crisis of confidence. International law needs to be strengthened. That means making international law a political priority in wartime and ensuring aid and diplomatic support are contingent on compliance, regardless of which state is skirting their obligations. Moreover, when bad actors co-opt the language of international law, they need to be called out more forcefully, whether friend or foe. When countries abuse law to justify illegal conduct, the appropriate reaction is not to dismiss the law, but to point out its misuse.
It is becoming more obvious to everyone that international law cannot fulfil all the roles most would expect of it. But the growing interest in international law also indicates an area of rare agreement: Law is relevant in war. We must build on this agreement because war without law is no alternative at all.
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