The Meaning of International Law

Examining the ICJ’s prosecution of Israel for its war crimes in Gaza and the long history of international law, Noah Emke argues that the failure of international institutions to stop barbarous acts of state violence highlights the need for a truly international rule of law, above the petty sovereignty of capitalist warlords.

This year, the institutions of international law are receiving more media attention than at any point in history since the Nuremberg Trials. Thanks to Israel’s genocidal campaign against the Palestinian people of Gaza, United Nations (UN) institutions are facing the greatest test since their inception: the prosecution of a critical United States ally. For decades, the US and the concepts of international law and order have been inseparable, with the former supposedly acting as the most diligent enforcer of the latter. After all, it is hardly coincidental that the UN headquarters is located in New York. With Israel nakedly committing genocide¹ and numerous other war crimes using US weapons,²  a breach has rapidly been exposed. As the International Court of Justice (ICJ) and the International Criminal Court (ICC) slowly and hesitantly begin their prosecution of Israel, it is impossible not to notice the difference between US pronouncements and those of the UN and its affiliates (not to mention the objective facts on the ground). In this unprecedented situation, it is hard to see how things will be resolved, even in the narrow arena of international law. Will the UN stay true to its supposed founding principles, or will it defer to the foreign policy objectives of the US? Then, supposing the ICJ and ICC do rule resolutely against Israel, will their rulings matter without US support? All we can know for certain is that the limits of these institutions will soon be exposed. However, if we want a clue about the future, we can look at the history of international law.

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Although the current concept of international law is relatively new, the idea of norms and conventions regulating the conduct of sovereign actors is ancient. All over the world, codes of conduct surrounding warfare and the treatment of enemies emerged out of necessity. From the Aegean Sea region in Classical Europe³ to North American tribes,⁴ groups of people who often went to war with one another realized that it would benefit everyone to limit the destruction and brutality of warfare itself, protecting things these cultures saw as valuable. For example, the Greeks happily massacred and enslaved civilians, but considered certain holy sites off-limits. The current European concept of international law is quite different. These core premises, now baked into international norms the world over, are rooted in the Early Modern Period (~1500-1800), when the concept of modern nation-states was first developing. The Peace of Westphalia, the resolution of the gruesome Thirty Years War, could be thought of as a defining moment in the history of both European national conceptions and relations between those nations, establishing the principle that nation-states were theoretically sovereign over their established territories. Political actors were now meant to consider their interests from the perspective of a specific set of national borders, instead of competing familial dynastic ambitions weaving Europe together into a chaotic patchwork of feudal claims.⁵

The First and Second World Wars created the conditions for a very different idea of international law from Westphalian sovereignty alone, one focused on the rights of individual human beings in addition to the conduct between states. After World War I, the destruction caused by modern warfare in Europe incited grave concern in the more far-sighted members of the ruling class (not to mention horror among the workers affected by the conflict). US President Woodrow Wilson attempted to create a new set of international norms to avert another similarly destructive war, thus saving the capitalist-imperialist system. Wilson would set out a series of “14 points” that he believed would build a lasting peace, including the League of Nations, where all the world powers would talk over and resolve their problems peacefully rather than go to war. However, his 14 points were rejected, and the League of Nations proved completely ineffectual in preventing the next major war.⁶ The unresolved inter-imperialist conflict continued to escalate, leading to the even more destructive World War II.

The post-WWII order, however, represented a revolution in the geopolitical world order, creating a set of institutions that world powers were compelled to at least pretend to take seriously, and which vastly increased these states’ assumed responsibility for the rights of human beings. Even the existence of the UN, an organization meant to be far more inclusive and expansive in its scope, represented a major shift from the pre-war status quo. The new international law supposedly safeguarded by the UN did not just govern relations between states, but actually prioritized the rights of individuals as human beings. The Geneva Conventions were given an update in 1949, reflecting the new horrors of modern warfare, while the Universal Declaration of Human Rights under the auspices of the UN served as a milestone development in the relationship between international relations and individual human dignity. Soldiers and civilians were officially entitled to certain protections, both within the social peace of a particular nation and in contexts of warfare.⁷ While the global capitalist class could hardly promise an end to horrific, technologically advanced wars, they did promise an end to the despicable human rights abuses seen in the early- to mid-20th century. The narrative was that should genocidal fascists come to power in any nation, it would be the business of the world powers to go in and put a stop to it, preventing a repeat of the Holocaust (or at least avenging it more swiftly and decisively).

This brings us to the most important development of 1945: the supremacy of the US. While Wilson could not force the European powers to accept his liberal internationalist vision after WWI, WWII saw the near-total collapse of Europe and its empires. Rather than previous systems of international relations, like the League of Nations, the new order did not rely on the honor system and a vague balance of power between nations. Instead, the new system of international law, enshrined in the United Nations, was safeguarded by US military might and its subsidiary allies. This was a far more effective system, with the US acting as the teeth that prior international law always lacked.

The obvious flaw in this new world order is, of course, the impunity of its enforcer. It is common knowledge that the veto power held by permanent members of the UN Security Council grants the US power over excluded nations, but the unfairness goes far beyond the letter of the law. While the UN represents almost all nations, US domination ensures the norms of human rights will be enforced selectively. When the US intervenes to protect human rights or other international norms and laws, it is always against a target who gets in the way of the interest of US capitalism. At any given time, many nations around the world are violating international law, but the rules are never enforced against regimes cooperating with US foreign policy. For example, US antagonist Muammar Gaddafi was forcibly removed from power, while the current state of affairs in Libya, demonstrably worse in every way, is not considered to be a priority for US intervention.⁸

This partiality is something of an open secret, but the pretense of equitably enforcing international law and human liberty is still convincing to the citizens of North America and Europe. The Western capitalist media builds up this image by focusing on enemies of the US, subjecting them to scrutiny that other states can avoid. For example, the plight of Uyghur Muslims in China is rightfully denounced by the US, while the persecution of other nations’ Muslim minorities is hardly given such attention. All around the world, human rights abuses are occurring of which most people are hardly aware. Right now, Sudan and the Congo are in states of brutal civil war, while New Caledonia is facing repression from French colonial authorities. Because the US would not profit from intervening in these issues, they are downplayed by the media, while the abuses perpetrated or allowed by enemy governments are given special attention. In this way, consent is manufactured for imperialist military ventures all over the world, while the victims of countries allied with or neutral toward the USA are totally ignored by the public. Since the debacle of the Vietnam War, the state has honed its media strategy to near perfection, maintaining its domestic image as a defender of human rights and international law. Through the lens of the mainstream news media, this is true whether the US is remaining totally unhelpful and inactive in the face of ruthless oppression, or performing destructive invasions against sovereign nations.

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The current genocide in Gaza is different, in that it openly displays the hypocrisy of the US even to the mostly apolitical public. The US and the UN are strongly at odds. There is a real risk of delegitimization for both. In many previous incidents, the UN Secretary admonished the US for acting illegitimately, such as stating in 2004 that “from our [the UN secretariat] point of view and the UN Charter point of view, it [the Iraq War] was illegal.”⁹ The operative word here, of course, is “was.” The UN criticism only provided an unfavorable news story after the fact, but could do nothing to punish the Bush regime, or even criticize the invasion with any immediacy. The Israeli war against Palestine, however, has now made its brutality and genocidal intent so blatant that the UN has no choice but to prosecute the Netanyahu regime, a major US ally.

This is not a rift that can be merely swept under the rug, even if both parties would prefer that outcome. The UN is saying one thing, reflecting the clear facts on the ground, and the US is contradicting it. The UN issued a resolution calling for a ceasefire, and the US incorrectly labeled it non-binding.¹⁰ The UN proved that UNRWA was uninvolved in the October 7th attacks, but the US has still not reinstated its funding.¹¹ The ICJ ruled that Israel was plausibly committing genocide, the clearest ruling that can be issued at this stage, and the US continued arming and funding Israel.¹² The UN released a report revealing the falseness of many Israeli claims concerning the October 7th attacks,¹³ while one of the most liberal politicians in the US denounces peaceful protests against an Israel-sponsored “exhibit” spreading those false claims.¹⁴ In a deranged and illegal move, US Senators directly threatened the property and families of ICC officials, merely because the prosecutor raised the possibility of arresting Netanyahu and his Minister of Defense.¹⁵ US allies are caught in this uncomfortable tug of war, trying to appease both sides at once. Various European states are stopping weapons shipments to Israel, putting sanctions on West Bank settlers, and reinstating UNRWA funding, but never fully divesting from or condemning the Zionist state as a whole. 

Despite the farcical nature of all this, it is actually consistent with existing US policy. Many people would be shocked to realize that the US, constantly sounding alarm bells against belligerent “rogue states” is something of a renegade itself. The US has never signed on to institutions like the ICC, or even the UN Declaration of Rights of the Child,¹⁶and even has a law on the books authorizing the President to invade the Netherlands should a US official ever be tried in the Hague. While the US’ flaunting of international law has gone more or less unnoticed in the public discourse, even as the US invokes international law against its enemies, more people are now noticing and questioning this pattern of behavior.

There are several reasons why this time seems so different. Image is a big part of it. The internet allows the Palestinians suffering in Gaza to provide video footage of the massacres in real-time, and the media attention garnered by the October 7th attacks may have actually made these posts reach a wider audience than similar posts from less well-known conflicts, like the Sudanese civil war. The media war is not so much being won by Palestinians as it is being humiliatingly lost by the Israelis. Tik Toks and Instagram reels of Palestinian children dying, starving, and maimed are definitely a PR disaster for Israel, but their own troops seem to be doing even more damage. IDF soldiers share videos gloating over destroyed schools, mosques, and hospitals, or posing with jewelry and underwear looted from murdered or displaced women.¹⁷ Israeli citizens and civilian politicians are just as bad, posting bizarrely violent and dehumanizing things about Muslims online, seemingly unaware that their words can now be translated at the press of a button. The Israeli government’s attempts to spin the war seem to do more harm than good. Who could forget the infamous copy of Mein Kampf in the “child’s living room,”¹⁸ or the embarrassing forays into anti-woke sketch comedy?¹⁹ The US is responding in desperation with its bid to control Tik Tok, but the spigot of bad press will not turn off with the censorship of just one app. This unending stream of publicly accessible evidence of war crimes means that the UN cannot simply accept the line coming from Israel and the US. Their rulings and resolutions must at least somewhat reflect the reality that people are seeing, otherwise, it will lose legitimacy.

The hypocrisy is far more difficult to hide with the growing influence of formerly colonized nations within the international community. In the 1919 Paris Peace Conference, Japanese attempts to add an anti-racist agenda to Wilson’s 14 points for international governance were sternly rejected even before the overall plan collapsed,²⁰ and the original League of Nations was nothing more than a “thieves’ kitchen” for Western imperialists, as Lenin would say. The modern UN, however, was founded at a time when the system of Western imperialism was shaken to its core. Anti-colonial nationalism was on the rise, many colonized peoples had been trained and equipped to fight by the US or the Soviet Union, and these nations’ rivalry allowed newly emerging powers to attain independence by siding with the Eastern bloc or balancing between the two superpowers. As a result, the UN and other international bodies had to maintain at least a veneer of equality between nations (even while undemocratic institutions like the permanent Security Council were maintained). At first, political-economic realities kept white Western agents firmly in control, but this is starting to change. Thanks to late 20th-century decolonial and anti-racist movements, higher levels of education are now open to people who were excluded in the past, meaning the staff of international institutions is now far more diverse. White supremacist anxieties about this are revealed in the Zionist reaction to ICC prosecutor Karim Khan, disgustingly claiming his decision to seek Netanyahu’s arrest was motivated by his family’s Pakistani background. Even on a larger scale, there are big changes in who participates the most in international institutions. China’s military has played an increasingly large role in UN peacekeeping operations, taking the lead as the US steps back.²¹ Formations outside the UN, like BRICS, reflect the shift in the center of political-economic gravity toward the former colonies and semi-colonies. These rising powers are made up of people who have experienced the kind of colonialism happening in Palestine and, more importantly, it is not in their geopolitical interest to let the US and Israel have their way. Despite overwhelming disadvantages created by the processes of colonialism, states traditionally subject to European empires are growing powerful and demanding their due level of respect and influence within international institutions.

The stage is thus set for an open break between the US and international institutions like the UN. There is still time for reconciliation at this juncture, which would involve jettisoning support for Israel (or at the very least Netanyahu’s government), but US lawmakers are not indicating any moves in that direction. It seems increasingly likely that the US will openly divorce itself from the core premises of international law, namely the simple idea that civilians should not be targeted by state militaries, leaving the power of the UN and the legitimacy of the US weakened. From a Marxist perspective, the UN and the US both represent the capitalist class, but a US drawn into rogue state behavior by Israeli jingoism represents the greatest threat to working peoples around the world. At the same time, we cannot simply become cheerleaders for bourgeois international law. After all, the post-war experiment in international law is currently going down in flames, utterly failing to protect the human rights of Palestinians, let alone the people of Sudan, the Congo, and innumerable other nations facing less publicized human rights disasters. Even the UN’s toothless resolutions against Israel are always accompanied by similar resolutions against Hamas (despite the international legal validity of resistance to occupation)²² in order to mitigate the wrath of the US and its allies. 

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In light of this catastrophe, it is clear that we need a further evolution of international law, beyond what capitalist geopolitics could possibly allow. Even as the ICJ finally admits that Israel’s behavior in the West Bank is totally illegal, it can do nothing besides issue stern warnings. The failure of international institutions to stop such barbarous acts of state violence highlights more than ever the need for a truly international rule of law, above the petty sovereignty of capitalist warlords. Capitalist foreign policy takes it for granted that states are sovereign over a particular territory, free to abuse and exploit their subjects in a desperate struggle for markets, resources, and investments. One can imagine the increasingly complicated rivalries of multinational corporations as analogous to the confusing dynastic struggles that tore up Early Modern Europe, with similarly destructive consequences for people’s lives and freedoms. Nation-states compete for the favor of these corporations in an international market, sacrificing the well-being of their subject peoples and engaging in militaristic policies in order to gain an advantage. Today, in a world where all peoples are linked into a single international political-economy, it is common sense that an international rule of law is necessary, just as a single national rule of law appeared necessary to the Enlightenment thinkers of the 18th and 19th centuries, in light of rising national markets. The world is now an indivisible economic unit, and it will continue to confront all working peoples with insoluble problems so long as the political system does not reflect that fact. This is reflected in the demands of the most politically advanced leaders of the masses, such as the Black Panther Party’s demand for UN supervision of a referendum on the question of Black nationalism.²³
 

Marxists in the US have a unique responsibility to put this internationalist vision forward, as citizens of the greatest imperial power in a world facing down collapse at the ecological level. The modern world has an international system of production, which has created international problems, and socialist foreign policy is the only solution. The narrowly nationalistic view of the world shared by both Democrats and Republicans has no solution to the mass displacement of impoverished workers caused by climate change and political turmoil. Instead of solving the root causes of these crises, Harris and Trump can only offer a militarized border to keep out the migrating workers from the South, mirroring in the Americas the apartheid system reigning over Palestine. When common sense dictates the US should be partnering with other states to help mitigate climate change, America’s liberal foreign policy is doing the opposite, rebuking China’s green technology subsidies as non-competitive.²⁴ Brazil’s recent proposal for a small global wealth tax, designed to gather funds to fight the climate crisis, is a total non-starter thanks to US disapproval, ensuring oligarchs can continue to flee their countries’ national tax policies.²⁵ Organizations like DSA have the opportunity to be the voice of reason here, combating the nationalist consensus with a foreign policy program that promises a US that takes the lead on solving global issues, partnering with working people of all nations to bring equity and prosperity.

As the current regime of international law buckles under the weight of the contradictions facing all nations, Marxists have the responsibility to put forward a new geo-political system. The economic, political, and ecological issues produced by capitalism cannot be solved in any one country alone, nor can they be solved by the paternalism of a single corrupt superpower like the US. As the capitalists drone on about personal responsibility, they engage with the outside world with what can only be called a totally contemptuous irresponsibility. Only a partnership of nations, democratically governed by their working classes, can effectively combat global threats like climate change and pandemics. Socialists can and must resist the tide of nationalism sweeping the world and put forward a program of international accountability to preserve civilization from the barbarism of local tyrants like the Israeli state.

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1. “Genocide in Gaza,” University Network for Human Rights, https://www.humanrightsnetwork.org/genocide-in-gaza (Accessed 8 July 8 2024)
2. “U.S.-Made Weapons Used by Government of Israel in Violation of International Law and U.S Law,.” Amnesty International USA (29 April 29 2024). https://www.amnestyusa.org/press-releases/u-s-made-weapons-used-by-government-of-israel-in-violation-of-international-law-and-u-s-law/.
3. A, Lanni, “The Laws of War in Ancient Greece,” Law and History Review 26, no. 3 (2008),469–489. https://doi.org/10.1017/s0738248000002534
4. International Committee of the Red Cross, Native American laws of war. Religion and Humanitarian Principles (19 October 2023). https://blogs.icrc.org/religion-humanitarianprinciples/native-american-laws-of-war/
5. Steve Patton, “The Peace of Westphalia and it Affects on International Relations, Diplomacy and Foreign Policy,” The Histories 10, no. 1 (2019), https://digitalcommons.lasalle.edu/the_histories/vol10/iss1/5/
6. “The League of Nations: Definition, WW1 & Failure – History,” History.com, https://www.history.com/topics/world-war-i/league-of-nations (Accessed 8 July 2024).
7. “Summary of the Geneva Conventions of 1949 and Their Additional Protocols,” American Red Cross (April 2011), 1www.redcross.org/ihl.
8. C. Quackenbush, Libyan Slave Trade: Here’s What You Need to Know,” Time.(1 December 2017), https://time.com/5042560/libya-slave-trade/
9. BBC News.  Iraq War Illegal, Says Annan (16 September 2004).http://news.bbc.co.uk/2/hi/middle_east/3661134.stm
10. N. McAlpin US Calls UNSC Gaza Ceasefire Resolution Non-Binding. Is It?, The New Arab. https://www.newarab.com/news/us-calls-unsc-gaza-ceasefire-resolution-non-binding-it
11. J. Northam,. , Report on UNRWA Concludes Israel has not Provided Evidence of Employees’ Militancy, NPR (23 April 2024).https://www.npr.org/2024/04/23/1246613547/unrwa-israel-hamas-gaza-war
12. F. Al-Kassab. A top U.N. Court says Gaza Genocide is “Plausible” But Does Not Order Cease-Fire, NPR  (26 January 2024) https://www.npr.org/2024/01/26/1227078791/icj-israel-genocide-gaza-palestinians-south-africa
13. L. Truchan, What did the U.N. Report on Sexual Violence on Oct. 7 really find?. Progressive.org. (5 April 2024), https://progressive.org/op-eds/what-did-the-un-report-on-sexual-violence-on-oct-7-really-find-truchan-20240405/
14. A. Ocasio Cortez, [AOC], The callousness, dehumanization, and targeting of Jews on display at last night’s protest outside the Nova Festival exhibit was atrocious antisemitism – plain and simple. Antisemitism has no place in our city nor any broader movement that centers human dignity and liberation, (11 June 2024) Retrieved from https://x.com/AOC/status/1800599178424516934
15. N. Robertson, GOP Conservatives Threaten ICC with Sanctions if They Seek Netanyahu’s Arrest,.The Hill (11 June 2024) https://thehill.com/homenews/senate/4646527-gop-conservatives-threaten-icc-sanctions-israel/
16. Human Rights Watch, United States Ratification of International Human Rights Treaties. Human Rights Watch (29 March 2023). https://www.hrw.org/news/2009/07/24/united-states-ratification-international-human-rights-treaties
17. Israeli Soldiers Boast about Looting from Gaza. Al Jazeera. (14 February 2024). https://www.aljazeera.com/program/newsfeed/2024/2/14/israeli-soldiers-boast-about-looting-from-gaza
18. G.F. Cashman,(n.d.-b). Herzog: Copy of “Mein Kampf” Found in Children’s Bedroom in North Gaza,, The Jerusalem Post https://www.jpost.com/breaking-news/article-772894
19. Actor Brett Gelman” to Skewer US Progressives and joins “Eretz Neheder | t Times of Israel. (n.d.). https://www.timesofisrael.com/actor-brett-gelman-joins-eretz-nehederet-to-skewer-us-progressives/
20. J. Axelrod, A Century Later: The Treaty of Versailles and its Rejection of Racial Equality, NPR (11 August 2019), https://www.npr.org/sections/codeswitch/2019/08/11/742293305/a-century-later-the-treaty-of-versailles-and-its-rejection-of-racial-equality
21. C.J. Fung, China’s Small Steps into UN Peacekeeping are Adding Up. IPI Global Observatory (24 May 2023). https://theglobalobservatory.org/2023/05/chinas-small-steps-into-un-peacekeeping-are-adding-up
22. Cohen, S. L. (2017, July 20). Palestinians have a legal right to armed struggle. Al Jazeera. https://www.aljazeera.com/opinions/2017/7/20/palestinians-have-a-legal-right-to-armed-struggle
23. History is a Weapon., Black Panther Party Platform, Program, and Rules, https://www.historyisaweapon.com/defcon1/bpp.html
24. Alan Rappeport, “Yellen Warns China against Flood of Cheap Green Energy Exports,” New York Times (27 March 27 2024), https://www.nytimes.com/2024/03/27/business/yellen-china-green-technology.html.
25. Fiona Harvey, “‘Morally, Nobody’s Against It’: Brazil’s Radical Plan to Tax Global Super-Rich to Tackle Climate Crisis,” Guardian ( 28 July 2024), https://www.theguardian.com/world/article/2024/jul/28/brazil-radical-plan-tax-global-super-rich-tackle-climate-crisis.