H.A. Hellyer
Al-Jazeera / July 29, 2024
If the West is to maintain any credibility in upholding the rules-based order, it needs to ensure international law applies to all equally, including Israel.
On July 19, the International Court of Justice (ICJ) issued an advisory ruling pertaining to Israel’s occupation of the Palestinian territories of Gaza, East Jerusalem, and the West Bank. Much will go into analyzing that ruling, but there is one big question that needs to be asked: how is this reminder of international law, and its position on Israel’s occupation, going to reverberate in the United States particularly, and the West more widely?
The content of the ruling was not entirely unexpected – international law, when it comes to this particular issue, is rather clear, and has been for decades. Nevertheless, it was a reconfirmation of where international law stood: all of these territories are under Israeli occupation; that occupation is unlawful; and it should not be normalized. In the Arab world, and much further afield in the Global South, there was a good deal of support expressed for the ruling, also unsurprisingly.
Of course, Israel rejected the court’s findings, which was quite expected. But an irony was emphatically manifested in how the US specifically, but also much of the West, responded to, quite literally, the “World Court”: by suggesting that its authority, which they say they recognize and respect, does not extend to them and their allies.
This, while ironic, was also hardly surprising.
The US has long publicly expressed support for the “rules-based order”, and international law that is meant to underpin those rules, but ignored international law when it fell foul of its interests and even tried to circumvent its institutions.
Take, for example, the institution of the International Criminal Court (ICC). A Democratic president, Bill Clinton, supported the establishment of the court during his tenure – but the Rome Statute that established the court was never ratified by the US. In the past few years, elected US officials have simultaneously supported and attacked the ICC. When the ICC issued arrest warrants for Russian President Vladimir Putin, for example, the US supported its work. But when the ICC prosecutor, Karim Khan, declared he was seeking arrest warrants for Israeli officials (as well as Hamas’), Washington rejected the notion altogether, with US President Joe Biden saying it was “outrageous”. Secretary of State Antony Blinken said thereafter that the administration would work with Congress to essentially punish the ICC, due to precisely these warrants.
Elections are due in the US in less than 100 days. A Republican victory is entirely possible, which would thus deliver not only a second Donald Trump administration but also an administration that would contain a vice president who demanded only a few weeks ago that the Department of Justice investigate and prosecute Khan due to these proposed warrants on Israeli officials. It is a staggering prospect, but one that JD Vance takes seriously enough that he signed onto a letter (PDF) along with several other Republican senators, which accused Khan of supporting terrorism through his “targeting of Israeli officials”, and thus ought to be investigated by the Department of Justice for breaking US law. As damaging as that might be vis-a-vis the integrity of the ICC, it ought to be noted: the ICC is an institution that Washington does not recognize the authority of, and never has. That is very different from the ICJ, which the US does at least recognize.
On the ICJ, the most aggressive responses in Washington, DC came from outside the Biden administration, on the right of the political spectrum. Much like several Israeli politicians, they attacked the June 19 ruling as “anti-Semitic”, but considering so many rights and legal organizations have already come to the same conclusions about the Palestinian territories over the decades, the objections appeared less than convincing, particularly when one considers the wide swath of even European political opinion that expressed support for the ruling. That included barometers of establishment thinking such as the Financial Times, the European Union’s high representative for foreign affairs and security policy, and many others. Poignantly, High Representative Josep Borrell noted, “In a world of constant and increasing violations of international law, it is our moral duty to reaffirm our unwavering commitment to all ICJ decisions in a consistent manner, irrespective of the subject in question.”
But there was still a bipartisan consensus of sorts in DC, at the minimum, that the ICJ ruling that Israel had to immediately withdraw from the occupied territories was contrary to the “established framework” for resolving the Israel-Palestine conflict. That consensus is correct, but not in the way that perhaps it is meant; international law itself assumes a very different framework than what has been taken by political leaders to be the way forward. The real critique, therefore, is really about the framework – not international law and the ICJ.
Bearing that in mind, what does that mean for the US? As much as it might be tempting to consider that this is an isolated, cordoned-off part of US foreign policy, the world will not see it as such. One intriguing comment in this regard came from one of the most noted Conservative politicians of this generation in the United Kingdom, perhaps the most stalwart of US allies.
“Beyond the customary verbal condemnation, the West turned a blind eye to these breaches [of international law]. We made it clear by our apathy that Israel was an exception to the rules. We in the West are now dangerously exposed by that apathy,” Nicholas Soames, a Conservative member of the House of Lords and grandson of former Prime Minister Winston Churchill, said at a July 25 debate.
“In September 2022, the UN independent commission concluded in its report to the UNGA that the Israeli occupation of Palestinian territory ‘was unlawful under international law owing to its permanence and to actions undertaken by Israel to annex parts of the land de facto and de jure’. The commission stated that the permanent occupation and annexation by Israel could not remain unaddressed, and the General Assembly requested that the ICJ provide an advisory opinion. That opinion finally arrived on Friday. It stated that the occupation of Palestinian territory is illegal under international law. This ruling was welcomed as historic, clear and unambiguous, but it only formalized what we already knew … If the West is to maintain any hold or credibility in upholding the rules-based order on which we all depend, the rule of law must apply to all equally.”
Soames was referring to Israel’s conduct in light of international law, both in Gaza, and in the rest of the occupied territories of East Jerusalem and the West Bank. The point that he raised vis-à-vis Western credibility in upholding the rules-based order is rather poignant; because, indeed, it is that system which states, large and small, depend upon. At the same time, it is an order that can only claim any validity, if the rule of law is regarded as valid upon all as well. Otherwise, these are not rules – they are simply arbitrary tools and will be regarded as such by the international community writ large. That not only means that the world will see the US as hypocritical – but, critically, that the rules-based order no longer has any meaning to it. And that would have consequences far beyond the present moment.
There may be some that regard such a development to be insignificant or unsubstantial, but that would be remarkably shortsighted. Whether it is a Republican or a Democrat in the White House, it will still be a USA that will seek to engage in the world. For all the bravado and rhetoric about a return to “American isolationism”, if Trump returns to the White House, it is remarkable how much he wants to be involved in the world. His motto, after all, is not “America Only” – it’s “America First”. Indeed, even if the US wanted to genuinely withdraw from the world, it wouldn’t be able to; international health issues like COVID, climate change, and many other crises do not pay attention to national borders. In the Middle East, a Republican-led US would continue to be involved, but differently; the same in Africa, Asia, and Europe.
But herein lies the rub; if the US is going to continue to be involved in the world beyond its borders – it will, by necessity, have to build alliances, and rely on at least some multilateral institutions. How much political capital will the US find itself having with would-be partners in the world of multilateralism and alliance building if, indeed, Washington is perceived as considering itself and its allies above the law? If the international order – such as it is – begins to go through a slow meltdown, due to the weakening of international legal institutions; if the multilateral system becomes more and more fragile, as a result of the fracturing we see; what then is the alternative? A return to “survival of the fittest”, but in the 21st century, where technology can make almost every crisis existential quite quickly?
As Soames declared: “We can either cast aside selective blindness, recognize and act upon Rule of Law, without fear or favour, however difficult it may be. Or we can continue in determined blindness. But if we do that latter, we must know that we are jettisoning an order that was hard-won, we cannot be surprised when other world actors replace it, and we cannot be surprised at the consequences that follow.”
Is that better for the US and Western interests, after all?
H.A. Hellyer – scholar in the Middle East program at the Carnegie Endowment for International Peace
