1 week Ago
To paraphrase the Italian thinker Antonio Gramsci, a great variety of “morbid symptoms” appear in times of crisis. One of them is the slow but constant erosion of international law. Over the last decades, the use of force in Iraq, then in Ukraine, and now in Gaza and Lebanon, not to mention many other less-publicized conflicts, has strained the standing of traditional law.
This could be attributed to the continued fading from the minds of the United States and other states of the idea of the law of nations as a system of governance in international relations. Historically, the disconnect between law and power has not always been so obvious. For a long time, legal questions were not the exclusive confine of jurists.
The prevailing doctrine was natural law, that is, ethics. It mainly involved philosophical inputs as to what was right, just and fair. Today, international legal questions are answered in terms of what is lawful based on the rules agreed between sovereign states.
But rules are sometimes difficult to interpret, especially in the context of lingering conflicts involving multiple state and non-state actors. It’s no wonder that classic realist thinkers saw law as eminently fluctuating according to situations and circumstances. For them, law could only play a very limited role in international affairs, one that was always and inevitably circumscribed by power realities.
It would be unfair, however, to judge international law only by its shortcomings or failures. The truth is that we sometimes expect too much from international law and remember it only when we need it. A more positive way to see things is perhaps to understand how law succeeds in constantly and effectively adapting to the international environment.
And, more generally, what is in the cards for the global legal order in an age of strategic competition? Greek philosopher Heraclitus’ analogous river, where “no man ever steps in the same river twice, for it’s not the same river and he’s not the same man”, suggests that the future of international law depends on the changing balance of power between “liberal West” and the “illiberal rest.” It assumes that modern international law is primarily a product of Western preferences. As much as this construct looks appealing, some granularity is required.
It is true that calls for reforms from non-Western and non-aligned developing countries are mainly directed at norms created by the West. However, non-Western states have not always been without influence. The United Nations, Bretton Woods institutions, Bandung 1955 and the human rights revolution of the 1970s and 1980s are all the result of concessions, interactions and political battles across cultural and regional divides.
At a time when much of the world is welcoming back multipolarity, the emergence of more balanced power means that no country is really advocating for the complete demise of the rules-based order. International law has transitioned from a contractual system of rules into a much denser network of principles and procedures. This transition embodies the resonant idea that the international judicial system is playing an important role in building a global system of governance.
Even in situations where the Security Council is unable to act, the wheels of the international system continue turning. The International Court of Justice, the Human Rights Council, the OSCE, the Council of Europe and the European Court of Human Rights are all engaged in Ukraine. Likewise, a record number of states have been instrumental in referring that situation to the International Criminal Court.
The strategy of internationalizing a conflict as a legal matter, not just a political one, is now regularly at play in many conflicts, with Gaza being an obvious case in point. In 2024 alone, the World Court has been called upon to indicate provisional measures already four times, in the case of South Africa (and others) versus Israel on the application of the Genocide Convention in the Gaza Strip. This power, to be exercised only when there is urgency, has become a litigation tactic to advance arguments on the merits of the case.
It is indisputable that international courts and tribunals can make a difference. However, a word of caution is in order. The primary purpose of judicial institutions is – and always has been – to decide disputes between states with their consent and not to solve the greatest dilemmas of international politics or even render justice.
Courts with limited jurisdiction and enforceability should not be expected to address all violations of international law. It would be both unrealistic and misplaced. How, then, to treat the growing demand for justice and accountability when our world faces so many intractable conflicts and so many international crimes? Institutionalization, and not courts alone, could be one practical answer to such challenges.
When grave violations of international law occur, the UN Security Council is responsible for ensuring accountability through creative procedural and substantive means. One proposal could be that the UN Security Council pass a resolution obliging the secretary-general to establish a general, centralized, fact-finding Unit on Serious Violations of International Law (USVIL). The unit could make factual determinations and recommend further legal action when there is plausible evidence that war crimes, crimes against humanity and genocide have been committed.
The creation of a USVIL as a permanent standing body would have several advantages. First, it would not request an amendment to the UN Charter and would preserve the Security Council’s central role. Second, it would not have to rely on the moral standing or intentions of individual states, which are sometimes more interested in the process than in the outcome of a situation.
Finally, it would avoid turning systematically to the World Court, which, as the main judicial organ of the United Nations, is not equipped to handle the world’s largest crises and an increasing number of disputes. States at war that breach international law share the same responsibility. This consensus of wrongdoing should not be allowed to perdure.
Since law alone cannot replace politics to ensure peace and justice, institutionalization is the best pathway to reassert some level of political judgment and control..
