It Is Not Just International Law; It Is Also a Cat

No matter how and from which direction you drop a cat, it always lands on its feet. The same goes for international law, or rather international lawyers, whose infallible feet consist mainly of the language of breaches and violations. Commentators and academics often clamour that a crisis is befalling international law (here and here). If there is one, I echo Antonio Gramsci’s argument that “[t]he crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum, a great variety of morbid symptoms appear” (Gramsci, 1971, 276). Whether Gramsci meant to warn of the rise of Fascism in his time or was rather referring to the ultraleft turn of the Communist Party of Italy during the third Comintern is beside the point here (for an examination of the question, see here). My emphasis here is on interregnum, using it as an analytical tool to examine the idea of the decline of international law as far as the violation of the prohibition of the use of force is concerned today. I use the terms ‘violations’, ‘unlawful act’, ‘breach’, as a matter of penmanship rather than nonchalant indolence in categorical designations. I first argue that such concepts do not capture sufficiently the material reality we behold, using the aggressive military operations of Israel as an illustration. Following that, I employ Walter Benjamin’s reflections on ‘violence as a manifestation and not a means’ to state my case for interregnum and what to make of it.

Insufficiency of ‘Violation’ as an Analytical Tool

As we witnessed the full breakout of the direct military violence between Israel and Iran and the subsequent ceasefire, and behold Israel’s ongoing genocide in Gaza, its repetitive attacks against Syria, Lebanon, and Yemen, the ongoing Russian aggression against Ukraine, and the US’ recent bombing of Iranian nuclear facilities, it is perhaps shameless and certainly strenuous to pause and reflect. Already sufficient analysis has been written on the unlawfulness of the 13th June Israeli strike against Iran (see here and here, and for a more detailed analysis, provided you read Italian, here, or Farsi here) and the 22th June attack by the United States on the Iranian nuclear facilities, conjoining the Israeli use of force (here).

While such analyses remain necessary, I invite the reader to go beyond these frames, arguing that the current conjuncture must be understood as more than an episode of violations. The cases mentioned above indeed point to the rise of a new set of legal relations, what I describe as an interregnum in which the legal order and its subjects shed their façade and bare their unashamedly omnipresent violent face. I turn to Walter Benjamin for this question.

With his reflections on military law in his seminal essay Critique of Violence, Benjamin sought to demonstrate that sovereign State violence is not merely a ‘‘predatory violence’’ outside of and opposed to the legal order but a force capable of founding and modifying relations of law. The sovereign’s unlimited authority to wage wars seems, at first sight, opposed to the existing relations of law, and even a threat to the continuity of the legal order as such. The peace ceremony that formally ends all military operations, however, implies that a new de facto situation will be recognized as the new law. Through what Benjamin describes as the ‘‘necessary sanctioning of every victory,’’ military violence, which at first seemed opposed to the legal order, is in retrospect recognized as being legitimate and in accordance with the law (Marc de Wilde, 2006, 196, emphasis in the original, and also see here).

Take the examples above and their protagonists and antagonists once more. Are they all engaged in predatory violence everywhere and at all times, for which violence is but a mere ‘means’? A Benjaminean reading of this compels us to oppose this and suggest that such violence is not a means, but a ‘manifestation.’ Such a manifestation of violence, de Wilde comments, ‘legalized after the event, can cause a permanent modification of the legal order’ (de Wilde, ibid). What is more, this manifestation, which operates in and on itself and retroactively asserts itself, can ironically be deemed a victory. Donald Trump, speaking at the NATO Conference late June, declared not only the ceasefire between Iran and Israel a ‘victory for everyone’, but also dubbed his decision to join Israel in bombing Iran a victory for everyone, apparently because targeting Iranian nuclear sites with huge bunker-busting bombs had ended the war (see here). As such, the legal order appears to have always been exposed to the possibility of its decline—and its internal corruption (de Wilde, ibid).

Constitution of New Law: The Case of Palestine

We can reflect, even if privately, on the paradox that the current state of affairs is one of the manifestations and outcomes of our rules-based international order rather than solely occurring outside and against it. Put differently, the structure and architecture of international law, its very being, is not only permissive enough to bring such violence to emerge and sustain, but it actively produces violence for itself. This does not deny us the engagement in formal legal judgment as to qualifying and identifying violators, breachers, usurpers, perpetuators, victims, and injured States.

Still, what Israel does in Palestine cannot be captured entirely through that. It is constituting, ironically, a new legal order in which unbridled State violence determines the coordinates of what is possible and necessary. Such violence, often formally sanctioned (see Chancellor Merz’s statement, proclaiming that Israel’s attack against Iran is doing the ‘dirtywork…for all of us’), constitutes and makes law, new legal relations, new realities (see Hathaway and Shapiro’s take on the matter). There is much speculation and dread that Israel may be or is planning to attack Iran again, and the United States is not opposed to it, although apparently preferring a diplomatic agreement (here). ‘Why is the State Violent?’, asks James Martel: ‘Because it has to be violent to exist. The law, and legal practice, must rely on violence to sustain itself.’ [emphasis in the original]

It is a dilemma whether we should frame Palestine in terms of breaches, violations, non-compliance with rules of law, conflict classifications (see here), all up for judgement on international responsibility, stronger international institutions, boosting human rights law, etc. (see here, here, here, and here). What merely grasping and proclaiming breaches ‘would contain is not a criterion for violence itself as a principle, but, rather, the criterion for cases of its use,’ To use Benjamin’s words (Benjamin, 1996, 236). What Israel does to and in Palestine, and everywhere else, culminates, in my view, in a set of material conditions in which the international legal rule on the prohibition of use of force is constituted anew. In this scenario, waving the flag of violations in the face of breachers ultimately remains an exercise in the théâtre de l’absurde. Turning formalist for a moment, I cannot help but recall the infamous formulation of the International Court of Justice in the 1986 Nicaragua case that

“If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.”

To take this statement seriously today is beyond my strength, particularly because there is not much justification, strictly within the language of the law, offered by anybody either. But should there have been such justifications, the sheer quantity, magnitude, continuity, repetition, and volume of violations should make us wonder that indeed something else is at stake, and our cat is tired of constantly landing feet-on on the ground. The ground has shifted, the morbid symptoms have been here for long, and the sooner we recognize that, the better.

What to Make of Interregnum?

So what? Should international lawyers attempt to dismantle international law—hardly possible in the first place? As tempting as the thought may sound, perhaps not. But if so, which international law is that, and what in it could we do without? That dismantling should first and foremost occur in our understanding of international law. Fuad Zarbiyev asked several months ago: “Did we really wait for Ukraine and Gaza to discover the intimate connections between international law and politics when we should have known all along that law is the politics that has prevailed?” and “What distinguishes the double standard in the case of Gaza from many other cases of selective application of international law is that the former is too brutally obvious to deny, too difficult to obfuscate, too arbitrary to rationalize.”

Hence, the interregnum. As Gramsci would have put it, the current conjuncture is marked by ‘the ruling class having lost its consensus, i.e. is no longer “leading” but only “dominant”, exercising coercive force alone.’ This precisely means that the great masses have become detached from their traditional ideologies, and no longer believe what they used to believe previously, etc.” (Gramsci, 275). Be as it may, whether our times are one of ‘dominance without hegemony’ as Ranajit Guha opined, the credibility of the international system is significantly undermined and by none but its own hand (see here).

Are we to commit solely to legalesque protest of breaches, or rather recognize that the old is dying and the new is to be at least imagined before its birth? In the latter approach, we might start to lose just enough faith to do and think about the law’s commission and production of violence for itself, and engage differently in our classrooms, writings, political commentary, and advisory capacities. Confined to the former approach, however, we might remain and sound like progressive warriors for social and political justice dedicated to the idea of international law as it is, which could amount to actively suppressing any view which characterizes international law itself as culpable and attempts to identify new legal relations ensuing from said violence. If we do not find a way through the interregnum, our conditions might as well deteriorate further into a purgatory.