At the height of the Terror, ordinary Russians would console themselves with the thought that if Stalin knew what was going on, he would put a stop to the killing immediately. The great fantasy of the open society, too—maybe even of liberal democracy itself—is that revelation, or debate, will lead to truth, and more importantly to remedy. But if the availability of free, unlimited information about everything demonstrates anything, it is that knowledge does not lead to action. The disclosures of Wikileaks, of the Panama Papers, of countless acts of online and offline investigative journalism have not been worthless by any means, but they have not disturbed greatly the ongoing immiserations and corruptions of our gilded age. Last year, when it was ‘revealed’ that the Post Office had been prosecuting dozens of postmasters and -mistresses around the United Kingdom for theft, sending some to jail and destroying the lives of many others despite knowing that accounting shortfalls had been caused by a defective IT system, there was outrage. If only we had known! But I had been reading about this scandal for a decade and half in the not-especially-radical British satirical weekly Private Eye.i
So it is with war. The Tommies and Diggers in their Great War trenches in Flanders must have thought, ‘If people back home could see this, they would demand an immediate end to it’. But visibility is not the key to activism. Europeans, now, are watching and reading about two wars being conducted in the public eye.ii In Gaza, we have a mass killing—I will come to the question of genocide later—taking place on our screens and in our newspapers every day, conducted by an advanced Western army on a now-defenceless civilian population. Here in the United Kingdom citizens have been largely passive in the face of this. But it is to the active, and large, minorities—those for whom revelation and visibility are merely first steps—that I want to direct my attention here.
There are, of course, some important constituencies who support the Israeli assault on Gaza as an anti-terrorist operation, or as the exercise of a sovereign right to self-defence following the October 7 atrocities, or as just one more inter-civilisational war, nasty, bloody, and involving (‘regrettable’) civilian casualties.
There have been protests, too, by another very significant, sometimes engaged, sometimes highly motivated, minority. And among those who are deeply opposed to the IDF’s daily shelling of Gazans, there is a range of responses, very obviously interconnected. And as I write these words, Israel has begun bombing Yemen as a footnote to its latest campaign in Lebanon. It was once said of Stalin that if he had lived long enough he would have liquidated everyone; it is beginning to seem that if Netanyahu remains in power long enough he will end up bombing everyone.iii
To return to these various responses, I would propose dividing them into at least four. The first, and most obvious, is outrage. So much could be said about this, but at its most basic, or sentimental, it operates as a kind of underinformed progressive tic or instinct—a means of disposing of the Gaza conversation and moving on to more pressing matters. At its worst, it is a conservative move: a way of saying, ‘I’m personally aggrieved by this but I don’t intend to change one single thing about my life in order to help end this misery’.
The second response involves a kind of self-education in which one decides to learn something about Gaza or Israel or Hamas or Hezbollah. Two recent encounters spring to mind. One took place at the London School of Economics (LSE), where I teach and where we had been conducting a series of seminars on human rights and the laws of war, often led by experts with technical knowledge in these fields. In the late spring, a colleague of mine, Dr Luke McDonagh, then organised an event at which four Palestinian scholars spoke about the destruction of Palestinian universities in Gaza and the precarious state of others in the West Bank. This was an occasion to listen and learn. A few months later I was at a birthday party in Ireland where a group of us were busy deploring the situation in Gaza. One of our number, an Israeli man living in London, began talking about the various demographic transformations—the rise of religious extremism, the decline of the Israel Labor Party’s Ashkenazi base—in Israel’s political landscape over the past two or three decades. A kind of muteness came over the conversation that seemed to me entirely appropriate. Again, we listened, sometimes in respectful disagreement, sometimes with a sense that we were learning things we did not already know and had not already come to a firm view about.
A third response involves protest and activism. There has been a great deal of this in the United Kingdom and, I gather, in Melbourne. Hundreds of thousands of people have taken to the streets of Central London to peaceably oppose the military campaign in Gaza, while universities have been rocked by sit-ins, by the establishment of encampments and by interruptions to public events. I wrote about protest in an earlier ‘Letter from London’ and will say more about it in my next article, but for now I want to turn to the fourth response (these are patently not exhaustive): namely, the recourse to law or legal language as a specific mode of enlightened activism.
This is a very difficult matter for many reasons. Not the least of them is that international law is now a fact of life when it comes to talking about war and atrocity. It is, as I have told generations of students, a default language in which we describe and re-describe our moral and political responses to war. Indeed, its ubiquity makes it at some level ungraspable. In a more general sense, I have elsewhere characterised international law as ‘a literary, historical and political project—and a diplomatic language—through which different arrangements of global power and well-being are advanced and defended’. But more than this, it is a legal order in which many people—especially, but not only, the young—have invested enormous faith, and a language routinely used to express both our most elementary intuitions and some of our most complex ideas about the distribution of political resources in the world. As a consequence, an evaluation of international law has to be approached with the utmost sensitivity.
International law has gone to court
There is an orthodoxy about international law on the centre-liberal-left mainstream that treats it as a kind of jurisprudential hand-wringing—a perpetually unrealised project carried on the wings of angels, to be mobilised, marshalled, invoked, celebrated, pitied. Recently, I found myself sitting at supper next to a moral philosopher’s son who also happens to be a famous rock star. I wanted to know what Bob Dylan was like; he wanted to know about international law. It became obvious as our (lengthy) conversation meandered on that he fully expected me to be an unqualified enthusiast for all things international law. The point of the conversation was to apply right-thinking legal expertise to a world gone wrong. When I mentioned early in the conversation that I wasn’t sure about international law in the first place, I felt that for all his charitable openness to dialogue, the air had been let out of the conversation. My critique of international law was having a distinctly deflationary effect. I clearly wasn’t on board for the Clooney-Mandela-Bono international human rights project and its moral certitudes.
What is my problem?
This question has taken on even fresher resonance in light of a very peculiar—perhaps unexpected—development in the history of international legal discourse, or what Dr Maddy Chiam at La Trobe University has called ‘popular international law’.
There has of course, long been a certain consensus that war might be defeated, or at least humanised, through international law. So in an interview several months ago on the BBC, the Palestinian Ambassador in London, Husam Zomlot, was asked what his solution to the conflict was. His reply: ‘International law’. At the same time, discussion about the current war has been conducted in surprisingly legalistic ways. Geneva Conventions are invoked, rights to self-defence affirmed, crimes of genocide deplored.
But since early 2024, something else has happened. The world has become transfixed by the Court, and in particular, the International Court of Justice (ICJ). International law has gone to court.
Gil Scott-Heron once sang, ‘The revolution will not be televised’. International law, we might say, was televised first. People were watching ICJ proceedings as legal arguments raged back and forth, and then later as judgments were read out by the President of the Court. At dinner parties I was being asked esoteric seminar-room questions about what ‘provisional measures’ were, or what erga omnes standing rules entailed. The excitement provoked by these hearings was remarkable and in many ways gratifying. And in both South Africa v Israel and The Question of Palestine, at the centre of the Court’s decisions was a surprisingly robust—implicit in the South Africa case, explicit in the latter Advisory Opinion—condemnation of Israel’s long subjugation of the Palestinians.
In some respects, these decisions were the culmination of a century-long project to subject war to legal judgement—a legal utopianism that first took hold in the decision in 1919 to try the Kaiser for underspecified crimes against the international order and the attempt in 1914 by the Serbian Government to settle its differences with the Austro-Hungarians over the killing of Archduke Ferdinand at the newly established Permanent Court of Arbitration in the Hague. Instead of an arbitral judgment, though, we had the Great War. But the tantalising prospect of trial over war—or ‘law-law not war-war’ to repurpose an already misquoted Winston Churchill—haunted the consciences of international lawyers for a century after, and perhaps because of, the failure to extract the Kaiser from the Netherlands in 1918.
What are we to make, then, of the apparent realisation of this dream? There are so many reasons to celebrate, of course. Judicial decisions from The Hague offer facially definitive answers to long-standing legal debates. In particular, such judgments seem to offer for the Palestinians the attractive prospect of mobilising law against politics or war or persecution. The ICJ—and I leave the International Criminal Court indictments of Netanyahu, Gallant, Sinwar, Al-Masri and Haniyeh aside for the time being—has stated unequivocally that Palestinians have a right to self-determination, that this right has been denied for decades, that the Israeli occupation is illegal in form and fact and that there is a prima facie possibility that Israel is committing genocide in Gaza. This is not unimportant.
To give a tiny example of the way in which the Court’s decisions might influence policy at a sub-state level, another of my colleagues at LSE, Dr Oliver Hailes, has recently drafted a letter calling for the university to bring its investment strategies into line with the Court’s holdings in its Advisory Opinion.iv Much of the debate about divestment has been conducted in a political register, with the two sides represented as politics to the neutrality or inevitability or techne of decisions about investment, which are regarded from within as an exercise of expertise. The argument from within the LSE goes something like this: pro-Israel and pro-Palestinian groups disagree about divestment, and since the LSE cannot adjudicate between competing political claims without giving up on its scholarly even-handedness, it must keep politics out of these decisions. Leaving aside an obvious flaw in this thinking—that the original investment in, say, fossil fuel industries or arms manufactures is somehow politically indifferent or disinterested—we can see how helpful a judicial opinion might be in casting divestment as legal obligation and not political decision. Such micro-policy across a number of different worlds might make a substantial difference.
Lawful consequences?
This recourse to international legal talk comes at a price though. As Judith Shklar reminded us many decades ago, the choice of law is also a choice of politics. At a basic level, we choose to engage in moral or political activity through law rather than, say, direct action or protest or poetry. There may be losses involved in this. I do not have the time to inventory those losses here, but suffice to say, Raimond Gaita is our most powerful voice on the ways we might experience these losses, and much besides.
It may be, too, that international law norms get us used to a certain kind of killing. Some of what became known as the ‘laws of war’ emerged after what came to be regarded as the futile suffering of soldiers in the Great War. Since then, we have had, perhaps, fewer qualms about combatant death. After all, this is the point of the civilian-combatant distinction at the heart of the laws of war. The mass death of fighters is now thought of as a perfectly lawful consequence of war: think of the casualties inflicted on Iraqi soldiers during the early phases of the 2003 war, or the reaction to the recent pager and mobile phone attacks by Israel on Hezbollah officials.
The laws of war are anchored in an obligation to distinguish military and civilian objects. But the substance of this obligation is relatively weak, rendering it lawful to maim and kill substantial numbers of civilians providing this is done using approved methods and with the right intentions. One consequence of this is that when it comes to the conduct of war, international law establishes a relatively permissive regime. Attacking civilians is unlawful, but killing them decidedly is not, providing that killing is incidental and, as one treaty puts it, not ‘excessive in relation to the concrete and direct military advantage anticipated’.
And whatever the humanitarian impulses lying behind such rules, they do have a habit of feeding into a certain narrative–very pervasive in the British conservative broadsheets–of the Palestinian-Israel conflict that thinks of Palestinian deaths as somehow collateral or lawfully proportionate or ‘unintentional’, and Israeli deaths as crimes against humanity or murder or terrorism. ‘We’ are murdered, ‘they’ experience ‘a growing humanitarian disaster’.
Another way to put this is to say that there is tendency to think differently about death by air and death by bullet. Shooting civilians in cold blood is invariably a war crime. But the decapitation of children from the air can be perfectly lawful as ‘proportionate’ or ‘necessary’. This is the legal position, and it may accord with the moral instincts of some or many people.
It is worth asking, though, whether international law hasn’t helped sanitise civilian death. Think of the way in which, again, in sections of the British media, ‘mass murder’ in Southern Israel is contrasted with the apparently neutral but quietly legitimating ‘air strikes’ in Gaza.
In June 1938, UK prime minister Neville Chamberlain warned, ‘It is against international law to bomb civilians as such and to make deliberate attacks on the civilian population’. But that was in 1938, and things had changed by 1945. Indeed, arguably, one of the effects of the Nuremberg War Crimes Trials was to render bombing from the air lawful. No one was prosecuted for razing whole cities; instead, Arthur Harris is celebrated in Britain for his role in planning and organising Bomber Command’s assault on undefended German towns at the end of the Second World War.
This implicit understanding about air war continues to blur our moral calculations. Here, again, international war crimes law, while criminalising the blatant targeting of non-combatants, has at the same time opened up a large licence to kill civilians.
Of course, there is justifiable outrage at the killings in Israel and Gaza, but this outrage is unevenly distributed. The Western media has largely taken the view that Hamas’s horrifying murder of Israeli families is an unprecedented and barbaric crime against humanity, while the air bombardment of Gaza—a highly confined territory about the size of North London—is a debatable matter full of agonising legal distinctions.v
At least some of this is easily explained by the historical alliance between the West and Israel. Part of it, though, is a function of the influence of the laws of war and the law of self-defence. The Hamas attack on October 7—depicted in some quarters as an out-of-the-blue invasion of a sovereign state—no doubt activates some kind of licence to protect the state. But the priority given to this right, over, say, the right to self-determination has led to a certain kind of politics: Israel’s right to self-defence becoming an imperative to act in self-defence.
Some lawyers (Lords Pannick and Macdonald) have argued that this right to self-defence is unconstrained even by humanitarian or legal limits. The attack was so awful, the threat so great, they argue, that all bets are suddenly off. But that is a minority position, mirroring structurally similar arguments made by Hamas about its unlimited right to massacre Israeli civilians in self-defence. A more conventional and legally respectable view argues that Israel’s right to self-defence is conditioned by norms of necessity and proportionality. This is what some Western leaders have being saying in their sotto voce criticisms of Israel’s campaign
In the end, though, it must sometimes appear that the norms themselves are so elastic as to permit precisely the kind of bombing campaign we are seeing in Gaza. The IDF is attacking military targets; the loss of civilian life is acceptable for such an operation; and the attacks are necessary to eliminate the threat from Hamas, a threat that can only be eliminated through an all-out attack on Gaza and so on.
But even if this is lawful, then it is also awful, and even more awful because lawful.
Genocide allegations and courtroom tactics
At the centre of this law-talk, as of earlier this year, is a newfound deference to courts and advocacy before courts. The South African case brought against Israel is something of a curiosity. It is widely understood to be a case in which the crime of genocide is front and centre. And yet the accusation of genocide (so affronting to Israel) is there because of a jurisdictional nicety. It was only by accusing Israel of genocide that South Africa could get the Israelis into court in the first place. Israel does not accept the jurisdiction of the ICJ as a matter of general obligation, but states that have ratified the Genocide Convention open themselves up to litigation under Article 9 of the Convention, which states:
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
South Africa seemed to win the initial skirmishes, but there remains a possibility that the Court will declare (in, say, eighteen months’ time) that no genocide has taken place in Gaza or that genocide has taken place only in one part of Gaza. We have been here before with the ICJ, which asserted, in the face of widespread conviction that ethnic cleansing amounted to genocide, that most of the killings in Bosnia during the civil war there were not genocidal (the exception was Srebrenica).
None of this is so surprising. After all, it has long been a commonplace of a certain critical tradition in international law—one that corresponds to an extent with popular and professional intuitions about the law—that legal and factual materials are incapable of generating definitive answers or that legal rules, as Duncan Kennedy argued decades ago, have a habit of arriving in contradictory pairs. Is Israel committing genocide in Gaza? The answer seems obvious. ‘Of course it is. Thousands of civilians are being killed in a campaign marked by an intent to destroy the conditions of life of a particular national group, Gazan Palestinians’.
Or: ‘Of course it is not, this is nothing like the Holocaust or the Rwandan genocide where millions were killed in systematic campaigns of mass murder’. I’m caricaturing these positions, but each is capable of being sustained by a plausible reading of the Genocide Convention.
‘Genocide’, then, has been transformed into a double-headed beast: conversation-ending gesture and terrain of political struggle and indignation.
In the end, then—and I have barely scratched the surface here—there are risks in a radical left program leaning too heavily on a legal order marked by both linguistic indeterminacy and a surprising degree of intimacy with military violence.
i Thank you to Sarah Trotter, Esther Freud and David Kershaw for their comments.
ii I wrote about Ukraine in Arena Quarterly 15.
iii As I edit it, Iran has launched a demonstration air barrage on Tel Aviv. This morning Israel invaded Lebanon. At the moment, a day is a long time in international politics.
iv The Court has directed all States ‘to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory’.
v Of course, there has been a mirror-image of this in accounts of the crisis that omit any mention at all of the October 7 murders of Israeli citizens. I am not so interested in this because this failure—of imagination, of care—does not seem as intimately linked to international legal categorisations.