International Court of Justice hearing. CREDIT: United Nations Photo.

International Court of Justice. CREDIT: United Nations Photo. (CC)

Jan 24, 2024 Article

The Gaza War and the Twilight of International Moralism

This month the government of South Africa took the extraordinary step of accusing Israel of “genocide” against Palestinians for its military campaign in Gaza at the International Court of Justice (ICJ). Supporters hailed Pretoria’s move as a heroic defense of international law and liberal values mired by U.S. hypocrisy, while critics have categorically dismissed that Israeli actions reach the threshold for genocide, going so far as to claim such charges are motivated by antisemitism. 

All this heated debate over each side’s supposed entrenched racism and international legal theory, however, masks a greater truth: the power and authority of international law since the Second World War depended on a monopoly over its interpretation enjoyed by the United States as the world’s chief hegemon. In the postwar era, despite Washington itself not recognizing the jurisdiction of international courts, international law was advanced as a tool of American statecraft and routinely weaponized to maximize U.S. global power. But in the increasingly multipolar world of today, appeal to such discursive tools is no longer the exclusive domain of Washington and its allies but available to other competing powers seeking to advance their disparate geopolitical interests.

In the 75 years that have passed since the UN ratified the Universal Declaration on Human Rights, the fate and authority of human rights and international law have never been more precarious than they are now. Both the ontological dimensions of the tragic wars in Ukraine and Gaza and the emotive international response to them have revealed international law as a rhetorical tool bastardized in service of politics rather than a practical and authoritative limit to ensure ethical interstate conduct.

Despite the ubiquitous, almost reflexive, appeals to notions of “human rights” and “international crimes” during both war and peace that have rendered them the dominant moral language of Modernity in the postwar era, the ground underneath them is shaking. Nowhere is this development more evident than in the context of the Israel-Gaza war—with each side and its international army of psychologically invested partisans and keyboard warriors instrumentalizing the specter of “genocide” to declare moral victory and effectively demonize and silence its critics (an earlier, less widespread, iteration of this also occurred in the Russo-Ukrainian war with opposing sides accusing each other of ethnic cleansing and war crimes).

Yet the barrage of blame and accusations notwithstanding, the war’s massive toll on the civilian populations is a reality that has continued—with the temporary humanitarian pause ending and no ceasefire on the horizon. More than 100 days into the war, 25,000 Gazans have died and millions are displaced and lacking basic necessities such as food and water, collateral damage to Israel’s vengeance on Hamas for its heinous October 7th terror attack that killed 1,200 Israeli civilians, with another 240 taken hostage. But although Netanyahu’s extremist-dominated unity government can certainly be criticized for the fallout of its scorched-earth tactics in hunting Hamas and while experts warn that the humanitarian catastrophe in Gaza will only worsen, it’s fair to say the free-flung application of morally charged accusatorial language such as “war crimes” and “genocide” has failed to be productive or advance the cause of peace.

Moreover, owing to years of routine emphasis on human rights as a primary tool of its foreign policy (even justifying military aggression and regime change in their name as a “responsibility to protect”), the U.S.-led Western Bloc now appears to the rest of the world as opportunists that will only selectively apply their Nuremberg standards to advance their instrumental geopolitical aims. Or worse, they appear as hypocrites who never believed in universal moral standards in the first place but simply weaponized them to achieve global hegemony. Hence, not only does regular appeal to the rhetorical power of terms such as “genocide” and “crimes against humanity” denature and deplete them of actual historical meaning, but it also inevitably politicizes them as the inconsistent and contradictory nature of their use turns them into mere insults and political attacks, increasing the risk of escalation.

In tandem with their declining credibility, appeals to international criminal law lack the deterring effect or the moral power to end the hostilities that those who espouse them might intend. Moreover, while there are instances such as the case of Syria when major powers—especially in the West as the bastion of the rules-based order—have ostensibly launched formal investigations into alleged systematic violations of international law using international institutions or their own domestic legal system, these supposedly universal precepts are only upheld when they don’t contradict the vital geopolitical interests of these states. And even then, they are often only procedural. After all, in the rare cases that such investigations do occur, no global body has the inherent power to prosecute the criminal and enforce the ruling.

Above all, however, resorting to legalist-internationalist rhetoric has proven ineffective and counter-productive because it operates out of a universalist and ideological framework that no longer fits the realities of international relations. The Great Transition—caused by the end of U.S. unipolarity and the global backlash against the universalist values that were underpinned by American might—spells the end of the “rules-based order” as we know it. As we enter more unchartered waters, we must be vigilant and realistic about the new environment in which we find ourselves and redefine the role of ethics within it.

To make sense of the tragic uncertainties that lie ahead, we must return to history for perspective. First, the postwar international order was always an anomaly highly dependent on the status of the United States as a global superpower and the particularly abominable nature of the Nazi persecution of the Jews. The term “genocide” was coined specifically to underscore Nazi atrocities against the Jews: any reference to Japanese or Soviet crimes for instance was deliberately avoided lest it spoil its place as the original sin upon which the new world order was to be established.

Moreover, the Nuremberg Charter and the invention of international criminal law in the wake of WWII epitomized “victor’s justice.” Its particular historical roots in the holocaust notwithstanding, its universalism rested on an international power structure that in both its bipolar and unipolar forms embodied Pax Americana. As U.S. General Curtis LeMay famously said of America’s use of nuclear bombs on Japan, “If we’d lost the war, we’d all have been prosecuted as war criminals.”

Both political realism and international relations realism point to the anomalous and highly contingent nature of the postwar order and its legalistic framework. Different than merely informal rules that could mediate various types of social relations, law is inherently coupled with the sovereignty of a given political authority. It has a natural domain over the domestic sphere. Without a domestic sovereign authority to endow it with jurisdiction and empower it to adjudicate, enforce, and punish offenders—laws are nothing more than arcane texts. They need policing powers and the capacity to use violence and force to be authoritative.

The international realm, meanwhile, is fundamentally anarchic—that is, it lacks a sovereign. Tending toward plurality and multipolarity, the international arena is the stage wherein multiple competing powers (or sovereigns) seek to advance their individual interests, usually within their specific regions. In normal times, no state enjoys a monopoly on force globally; no formal law is authoritative and compulsory for all. Far from being a premeditated order, it is a multiplex and multivector ecosystem made up of various actors that interact in often chaotic and dynamic ways.

The construction of the liberal international order (or the rules-based order) with its sheer idealism and its rationalist desire to project law and order internationally through positing, codifying, and institutionalizing interstate behavior via “international law” was a clear aberration. It was contingent on the United States effectively becoming the world’s sovereign as a global hegemon and holder of moral authority in the wake of the massive destruction of WWII—owing both to the impairment of various world powers and the collective outrage at the atrocities of the Nazis. It rendered formal, technical, and objective the informal and customary conventions that had taken centuries to emerge among European nations known as the law of nations (jus gentium). The new world order universalized Western (especially Anglo-Protestant) values as “human rights” with the U.S. reserving for itself the right to be its ultimate arbiter and enforcer.

That “order” is over. The United States is no longer the sole arbiter of international law because its relative decline to great power status and the rise of great and middle powers in the Global South have created a more level playing field in which—absent an overriding authority to promote certain interpretations and reject others—each can claim its own subjective interpretation of the law as equally just. Tellingly, Vladimir Putin exploited the very humanitarian law against ethnic cleansing that was used to legitimize NATO’s 1999 military intervention in Yugoslavia to rationalize Russia’s invasion of Ukraine, predictably framing it as a “responsibility to protect” Russian speakers in Ukraine from genocide.

What’s more, it is no longer only state actors that engage in such “genocidal” language games. Given the profound polarization, low public trust, and the general crisis of authority that engulfs most Western societies today especially in relation to foreign policy where decades of endless wars have diminished state credibility, civilians too now readily weaponize “genocide.” Some even stand against the official policy of the political establishment, as evidenced by how the progressive discourse on Palestine has clashed with the Biden administration’s strong and unequivocal military support for Israel.

Importantly, the shift away from unipolarity and the erosion of international law will not automatically result in a more violent and unstable world. Any move against further politicization and instrumentalization of “genocide” rhetoric as suggested here is a first step toward creating space away from the blame game and moralistic verbal attacks for a value-neutral global ethic that advances interest-based approaches to strategy that are more conducive to peace and conflict resolution.

A narrow focus on the pursuit of national interest can also be compatible with an ethical conduct of war that attempts to minimize civilian casualties. It also demands prudent reflection about the larger aims of military action. In the case of Israel’s war on Gaza, for instance, reestablishing physical and ontological security through the eradication of Hamas is the clear and rational overarching objective—even if achieving such total elimination of a guerilla group might prove as impossible in practice as the U.S. found its own goal of purging the Taliban to be. But if one seeks deterrence, foregoing a strategy of surgical and patient targeting of Hamas for what President Biden has called “indiscriminate bombing” of Gaza using unguided dumb bombs that leave people with very little to lose seems especially ill-advised.

Not only has the war destroyed Israel’s international reputation and any goodwill it had received from the rest of the world following the October 7 attacks, but it also shows how Israel has willfully ignored the primary lesson of America’s war on terror: that defeating armed insurgents and terrorism requires a political rather than a military strategy. And yet, with more and more public accusations of genocide thrown at it, Israel seems to have doubled down on its current failed policy of putting the lives of more Gazan civilians and those of its own soldiers at risk. This is not the behavior of a rational and confident actor but rather signals the presence of a siege mentality that makes it believe its critics simply hate its existence rather than object to its policies.

This bias against an outside world that’s regarded as largely antagonistic and a resulting feeling of besiegement and isolation are major drivers of the Israeli identity and sense of exceptionalism, exacerbated by Israeli politicians’ regular appeal to politics of insecurity since the Oslo Accords. This fundamental ontological insecurity and psychological defensiveness is easily triggered when genocidal language is used against it by outsiders, leading Israel to abandon reason and double down on militarism when perhaps diplomacy would better serve its long-term national interests.

At a time when it is critical to persuade Israel that a negotiated political solution with the Palestinians is the only way to ensure its long-term security, the global use and abuse of genocide rhetoric presents a major stumbling block to establishing a proper dialogue with Israel through bilateral and minilateral channels that could save lives. Any critic of the current Israeli approach to the war would be wiser to emphasize the national interests of Israel based on the changing balance of power in the region rather than appeal to humanitarian and legalistic arguments that do little more than demonize the Israeli state.

What international commentators on the pro-Israel and pro-Palestine sides categorically overlook is the fact that international law was never independent of power politics but a specific function of its modern exercise. It is not only that international law is routinely politicized but rather that it was always a chimera, a vicar for undisputed U.S. global power. Today, any actor—whether international or domestic—can use these moralistic rhetorical tools to publicly spin specific narratives for its own geostrategic and political maneuvering, just as Washington had done for decades. Pretending that the ICJ possesses any legitimate authority over international conflicts that it lacks (absent a new global hegemon to lend it its enforcement and exegetical power) does not advance the cause of justice or international peace; it makes a mockery of it and allows all a recourse to equivocation, sanctimony, and propaganda.

Carnegie Council for Ethics in International Affairs is an independent and nonpartisan nonprofit. The views expressed within this article are those of the author and do not necessarily reflect the position of Carnegie Council.

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