International law matters even when the West abandons it

Being less terrible to each other during war is a universal good that must be emphatically defended.

7 November 2023// The New Humanitarian

Imagine if every time a belligerent wanted to kill civilians or bomb a hospital, all they had to do to be absolved from culpability was to send a text message beforehand? This is effectively what Israeli President Isaac Herzog and US Secretary of State Antony Blinken proposed in a press conference on 3 November.

The press conference was designed to convince the public that the Israeli army was conducting its military campaign in Gaza – run by the armed Palestinian group Hamas – in line with international law. But this idea is simply not true: Texting civilians before you bomb them doesn’t make targeting civilians any less of a war crime. In the context of Israel’s bombardment of Gaza, it is an effort by powerful nations and entities to skirt their obligations, and to misrepresent these obligations to the general public. Beyond Gaza, this places anyone in any conflict zone anywhere in the world at incredible risk.

For the general public, the idea of laws of war might seem a little incomprehensible. If war is itself an indication that the law has failed, how can such a failure be itself regulated by law? But for people who interact consistently with fighters – technically referred to as belligerents – or for communities affected by war, these laws are a lifeline.

At their simplest, the laws of war are a complex system of ideas and beliefs, some of which are explicitly written or codified in documents like the Geneva Conventions and the Convention on the Rights of Refugees, and some of which are based on traditional, religious, or cultural practices.

The most well-known formal documents, the First and Second Geneva Conventions, are two of very few international instruments that have been accepted by every single country in the world. As such, these are believed to apply in their entirety to every single conflict in the world. 

The concept of laws of war can be simplified as the expression of a global agreement that those who are not party to a conflict – either civilians or those who are no longer fighting because they are prisoners of war or injured – should be protected from the worst of its negative consequences.

Civilian deaths in conflict are not unprecedented, but the startling death rate of civilians and particularly children during Israel’s bombardment of Gaza – a response to Hamas attacks that Israeli officials say killed 1,400 people, the majority of them civilians – is a painful reminder of why these rules exist.

According to Palestinian health officials, as of 6 November at least 10,000 people – about half of them children – have been killed in bombing that has destroyed schools, hospitals, and plenty of civilian infrastructure. 

Several UN experts have sounded the alarm. The International Committee of the Red Cross (ICRC), the custodian of the Geneva Conventions and what is known as international humanitarian laws that apply during conflicts, is a neutral organisation. Despite its repeated warnings that hostage taking alongside the bombing of hospitals, schools, and civilian infrastructure are direct violations of the Geneva Conventions, the bombing continues. 

Various UN agencies, beginning with the UN secretary-general and the directors general of the World Health Organization and the United Nations Refugee Works Agency (UNRWA) that oversees UN work in the Occupied Palestinian Territories, have warned that the IDF is systematically undermining the laws of war by targeting the civilian infrastructure in Gaza. 

Global experts are warning that, based on the language of senior Israeli politicians, Palestinians are facing the risk of genocide. These warnings seem to be landing on deaf ears. The weeks of expert alarm culminated in the press conference in Tel Aviv that added more confusion about what international law demands from those who engage in it.

It’s tempting to look at this situation and think that these rules are therefore pointless. However, they serve an important function that must be reinforced by anyone who has power.

They are providing a baseline for judging conduct that has in the past been too easily swept under the rug of politics. They are giving us a basis on which to categorically declare that the targeting of civilians and civilian infrastructure is a moral wrong, without having to get into long-winded and frankly distracting debates that don’t help us get any closer to saving people’s lives.

These laws are allowing governments and institutions that are not directly involved in a conflict to gauge an appropriate diplomatic response. They are necessary, but insufficient to protect civilian life. That threshold of sufficiency can only be achieved if those who hold power within global politics react to warnings, in this case by demanding a ceasefire.

The knock-on effects

Given how slow this action has come, we are already witnessing an alarming erosion of the idea of international law well beyond Gaza.

In Sudan, for example, the two main belligerents in the civil war have accelerated their attacks on civilians, taking advantage of the inability of global actors to pay attention to more than one thing at a time.

Those in Omdurman – the country’s second largest city – who did not have money or the opportunity to evacuate are trapped in their homes as food runs out because of heavy bombing within the city: the use of starvation as a weapon of war is forbidden in international law. In El Geneina, the Rapid Support Forces that were once implicated in the genocide in Darfur are rounding up and killing civilians again almost at will: The list of war crimes committed there in the last week alone is difficult to summarise in a single sentence.

At its simplest, international law in war is an agreement between those who wield power on behalf of nations and armed groups that they will not allow their animosity to descend into anarchy in which everyone and everything is a target.

This is the vexing puzzle at the heart of the international legal system. We can’t pick and choose the moments in which it will apply without undermining the validity of the entire structure.

All societies have ideas about how they should treat those who are captured or not directly involved in the fighting. Some of these ideas are that everyone is fair game and a target; others explicitly caution that those who are not directly fighting should be spared.

At its simplest, international law in war is an agreement between those who wield power on behalf of nations and armed groups that they will not allow their animosity to descend into anarchy in which everyone and everything is a target. There is an international criminal court that is supposed to work as an enforcer of the rules, but even that is dependent on the good faith cooperation of the countries that signed its treaties.

International law is a network of reciprocity and relation that depends on the participation of all nations and communities. It doesn’t require 100% compliance – almost no law, domestic or international, does – but it does require a critical mass of the world’s countries to willingly comply with a critical mass of its requirements, or, at the very least, not to undermine them.

The current formal body of international law represents not just the dominance of Western thought, but also the fact that some of the most devastating international wars fought in history were fought by Western nations.

These laws began as their mutual agreement to stop being so terrible towards each other. The rest of the world opted in because being less terrible during war made sense. Which raises the question so many people are asking: Given how publicly countries like the United States and various European nations have undermined the very idea of international law in defence of Israel in the past month, how are people in Sudan – and elsewhere – supposed to demand belligerents already disconnected to any other global system of accountability and sanction stand down? If Western nations act in ways that are destructive to structures that so many nations have opted into, doesn’t that mean the very notion of international law itself must be abandoned?

I think not. I think it is a moment for the exact opposite – reinforcing and rallying around the idea that being less terrible to each other during war is a universal good that must be emphatically defended. The idea that civilians should not be dragged into war should survive this moment of global failure and shame.

Wars are often fought in the context of nationalist or ethnonationalist passion, fuelled by national myths of singularity and led by politicians and generals who will never know what it is to be on either side of a gun or a bomb. The secondary impacts of conflict – the physical destruction of so many bodies, not to mention the psychological harm on those who survive – are almost never part of the calculus.

The idea of having laws of war is that this heated context can somehow be contained so that only those who actively choose to participate as soldiers or in politics should suffer the consequences. That idea must survive.

The question for those of us imagining a post-colonial, egalitarian future is what form that law should take so that it is no longer so intimately connected to the choices of powerful – and indeed, Western – nations. International law cannot and should not be abandoned to the vagaries of Western liberalism.

And in case you’re still wondering, texting civilians before dropping bombs on them doesn’t make dropping bombs on civilians okay. It’s still a war crime.