Editorial #40: Are We Failing?, or: Defending International Law in Times of Polarization

Perhaps one would hope that the end of the year would bring optimism for the new year. However, the situation at the end of 2024 is depressing, especially with regard to international law and the so-called rules-based international order. 19 November 2024 marked the 1000th day of ongoing Russian aggression against Ukraine. With horror, we watch the violent excesses in Ukraine, in the Middle East, where tens of thousands of civilians have been killed, as well as in Sudan, a war that is not only “forgotten”, but rather ignored in public discourse. In addition, there is the election of Donald Trump as US President, who, in his second term, is most likely not going to pursue a policy that is friendly to international law. It is therefore not surprising that several posts on Völkerrechtsblog around 5 November discussed the dangers of a second Trump term for international law and the rules-based international order, be it climate law, international law of peace and conflict, or economic, social and cultural rights. In the opening interview for our COP29 symposium, conducted by our colleague Khaled El Mahmoud, Margaretha Wewerinke-Singh rightly points out, “[t]he convergence of crises—from geopolitical tensions and economic divides to escalating climate impacts—challenges the fundamental principles of cooperation, solidarity, and fairness.”

In short, societies worldwide—and with them international relations—are confronted with crises and correlating socio-political polarizations. This makes it all the more important to ask how this polarization can be countered, or how it can perhaps even be used to defend international law. As a blog that strives for more diversification of our editorial team but at the same time has strong roots in the German academic system, it is not only, but especially, German politics and society that we can address here: As I argue in this editorial, our aim must be about upholding (self-critically) the value of international law—and that means, in particular, clearly identifying double standards in the assessment of breaches of the law. One fundamental concern is the protection of the civilian population in times of war, one of the great achievements of modern international law (even if its history is not free of ambivalences). To put it bluntly: If we do not succeed in applying the same law to everyone, “we”—as scholars, journalists, or as civil society—are failing in terms of international law and humanity (knowing that throughout history references to “law” and “humanity” have repeatedly been misused to legitimize violence and should be used with some skepticism).

Vulnerability and International Law

It is perhaps not without a certain sad irony that the more recent violent excesses against civilians, whether in Ukraine, in Israel’s war in Gaza after the Hamas massacre of 7 October 2023, or in Sudan, can be observed exactly 75 years after the entry into force of the four Geneva Conventions of 1949 and 160 years after the First Geneva Convention (1864). These are the most important rules ever formulated to regulate violence in armed conflicts. Their aim is to ensure a minimum of humanity through law even in war, and this applies in particular to civilians (Geneva Convention IV of 1949). They thus contradict Cicero’s famous saying that in war the laws are silent (inter arma enim silent leges).

On the occasion of reflecting on 75 years of the 1949 Geneva Conventions, historical approaches to international law have highlighted the ambivalences in this history. The history of international humanitarian law has often been told as a history of legal progress. There are good reasons for this: 196 states have now ratified the Geneva Conventions of 1949. After 1949, this legal tradition was supplemented by three additional protocols (two from 1977 and one from 2005). However, the history of international humanitarian law is by no means only a success story: in addition to humanitarian motives, the great powers’ vested political interests played a decisive role in the creation of the Geneva Conventions. The history of the law in war has always had a dark side, for while certain forms of violence were limited by law, others were legitimized. This law is intended to “humanize” war, but not to overcome it, as legal scholars as well as pacifists rightly criticize.

Moreover, the Geneva Conventions continue to be violated to this day. Although the protection of civilians in war under international law was significantly strengthened in the 20th century, the proportion of civilian war victims is particularly high in the recent past, whether in Ukraine, Iraq, Syria, Israel, Gaza, Rwanda or Sudan. Unfortunately, the list could be extended indefinitely. The number of civilian victims runs into the millions. One reason for this is the prevalence of asymmetric warfare, i.e. armed conflicts between state and non-state actors: the latter often target civilian victims, for example in the form of terrorist attacks. In turn, state actors used and continue to use their “war on terror” to justify the use of the most extreme violence, which makes insufficient distinction between combatants on the one hand and civilians on the other. Cyber and hybrid wars pose new challenges, while the automation of warfare raises moral and legal questions about the ability to distinguish between combatants and the civilian population.

So, there is a lot to do, and that also means there is a lot to regulate. However, in view of the global lines of conflict today, a far-reaching further development of international humanitarian law is significantly less likely than in 1949. And there is another central challenge, as Boyd van Dijk pointed out in our interview earlier this year:

“For the Global South (…) today presents a crucial moment where the international legal system stands at a crossroads and must decide whether to listen to some of these warnings from history, if not the present. These force us to learn from the structural shortcomings of Geneva’s drafters – not only to make war more humane but also to make it more universally and consistently applicable, possibly striving to recognize the right to peace, as non-aligned and socialist advocates of humanitarian law have almost constantly advocated for since the 1920s.”

International Law and Politics beyond Double Standards

The issuance of arrest warrants by the International Criminal Court (ICC) against Israeli Prime Minister Netanyahu, former Defense Minister Gallant and Hamas leader Deif on suspicion of war crimes and crimes against humanity in the Gaza Strip (Netanyahu and Gallant) and Israel (Deif) is a case in point. With regard to Deif, the ICC has stated that it has found a “reasonable grounds to believe that Mr Deif (…) is responsible for the crimes against humanity of murder; extermination; torture; and rape and other form of sexual violence; as well as the war crimes of murder, cruel treatment, torture; taking hostages; outrages upon personal dignity; and rape and other form of sexual violence.” With regard to Netanyahu and Gallant, the ICC has announced that it “found reasonable grounds to believe that Mr Netanyahu (…) and Mr Gallant (…) each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”

On 24 November 2024, the Washington Post headlined an opinion by the editorial team: “The International Criminal Court is not the venue to hold Israel to account. The ICC is needed to help resolve war crimes in Russia, Sudan, Myanmar. Targeting Israel makes that harder.” In the article, the editorial team argues that “[t]he ICC is supposed to become involved when countries have no means or mechanisms to investigate themselves. That is not the case in Israel.” Furthermore, the Washington Post argued that “[t]he ill-considered arrest warrants against Israel only give Mr. Trump a new reason to halt American cooperation with the court, at a time when it’s needed for Russia, Sudan, Myanmar and conflicts elsewhere that atrocities are being committed with impunity and the victims have no other recourse.” The post and in particular the title caused harsh criticism on social media as well as well as in letters to the editor of the Washington Post: there was talk of double standards. “When the ICC proceeds against Russian President Vladimir Putin, many in the United States cheer; but now, when the court also considers the evidence against an American ally, we are asked to ignore the merits of the charges.”, Michael Thomas, former U.S. Army lawyer and civilian litigator, wrote in his letter.

In the same vein as the editorial of the Washington Post, the reactions to the ICC arrest warrants in the political discourse in Germany were very critical (quotes here and here): prominent politicians from both the CDU and the SPD called the arrest warrants “wrong and absurd”, there was talk of a “perpetrator-victim reversal between Israel and Hamas”, and of a “disservice” to international law because the ICC, as Michael Roth (SPD) argued, supposedly equates a democracy with “bloodthirsty terrorists”. The Prime Minister of the German state of Hessia, Boris Rhein (CDU), said: “It is completely out of the question for me to allow a democratically elected prime minister from Israel to be arrested on German soil because he is defending his country against terrorists.”

Of course, in this case as in any other, one can debate the arrest warrants. It is also up to each political office holder as well as each private person to have a personal opinion on this. What is not acceptable, however, is for elected officials of a country like Germany, which has legally recognized the ICC, to undermine the court’s authority by describing its actions as a disservice to international law. It is therefore right that at the meeting of G7 foreign ministers in Fiuggi, Italy, German Foreign Minister Annalena Baerbock (Alliance 90/The Greens) signaled that “the German government abides by the law because no one is above the law” with regard to the arrest warrant against Netanyahu. Under international law, it makes no difference whether atrocity crimes are committed by democracies or totalitarian states. If the law is to apply, it must apply equally to all.

Otherwise, the German government would lose even more credibility in its traditional support of international criminal justice after 1945. “Staatsräson” cannot take the place of international law. Arguably, the German government would do more justice to its strong historical ties to Israel by consistently working for the protection of civilians in Gaza, the liberation of Israeli hostages, the cessation of arms exports to Israel that could be used in Gaza, and an end to the ongoing mass violence in favor of a lasting just peace. This would also be in line with the views of Israeli legal scholars and social movements that criticize breaches of the law by the Israeli army and demand respect for international law on all sides. It is true that Israel can still avert the arrest warrant against Netanyahu and Gallant if it takes on the prosecution itself. However, this is not to be expected at present.

Those who are pained by the issuance of arrest warrants by the ICC should perhaps take Nicole Deitelhoff’s words to mind:

“The West must now decide whether it can tolerate this pain or whether, in order to avoid it, it is willing to let the order it once established to enforce peace and (more) justice disintegrate. The pain that would result from this would, however, be far more intense and lasting.”

Respecting the vulnerability of civilians and protecting them should be the absolute minimum that the law is supposed to fulfill. Standing up for this right on all sides is the legal and moral duty of the German government and for us as scholars working in the field of international law.

Tackling Double Standards – Diversifying the Discourse

Scholarly discourse does not take place in a vacuum. On Völkerrechtsblog, we try to publish pieces that are “controversial but well-researched” and that also represent contrary opinions. It is about debate, not about opinion domination. We are interested in diversifying the voices in this debate, also in order to reduce double standards in the international legal discourse.

So, if I could formulate a pious hope for the new year 2025, it would be this: that our blog will continue to enable controversial debates among many different voices. That different opinions will be heard and respected. That we will keep open spaces for discourse on international law (and its politics) and not close them. That is what the blog is for. And it lives, not only thanks to its editorial team, but above all thanks to you, the authors and readers.