Prickly Questions of International Law Amid the Gaza War

 This blog originally appeared in the International Policy Digest.

The war in Gaza presents a problem for international politics. But it also poses problems for international law. Specifically, if we were to evaluate the events that have transpired since October 7, from the perspective of international law to assess the legality of actions and determine liability, many questions need to be addressed foremost among those, whether the events here rise to a level that could be adjudicated in some international forum, such as the International Court of Justice (ICJ) or the International Criminal Court (ICC).

The most complicated of all factors is about the status of Gaza—is it a state or not? The entire framework of post-1945 international law is premised upon a state-centric model. By that, nation-states or countries are the principal if not the sole actors in international public law. The United Nations is premised upon states as members of, not individuals or ethnic groups, for example. Non-governmental actors (NGOS) are not members of the UN, nor is the European Union, despite how important they are internationally.

Hamas is a terror group, not a state, and its legal standing under international law is unclear. The Gaza Strip, Jerusalem, and the West Bank are Palestinian territories. The Palestinian Liberation Organization proclaimed their territories a state in 1988. Palestine is recognized as a sovereign state by 138 of the 193 UN member states, but it is not a United Nations member itself. But neither Israel nor the U.S. recognizes it as a separate sovereign state, even though there is still lip service given to the idea of a two-state solution. While Gaza has some limited control and autonomy, it is effectively under the control of Israel.

On the one hand then, if Gaza is not a separate state, how does one characterize the attack against Israel by Hamas? The simple answer is that all the attacks were criminal acts and should be treated as such. This means the appropriate reaction by the Israeli government should have been to follow domestic criminal law, searching out the suspects who committed the crimes, prosecuting them, and putting them on trial. Israel instead chose an alternative approach and according to Gaza health officials, over 17,000 civilians, mostly women and children, have been killed as a result.

Instead, Israel formally declared war against Hamas. Under international law, one state cannot declare war against a non-state, let alone a group of individuals. First, aggression by states against another is supposed to be illegal against other states according to the 1928 Kellogg-Briand Pact, the UN Charter, and a 1974 UN resolution defining aggression. Second, while self-defense is recognized as legitimate by the UN Charter, the International Court of Justice has declared in a 2004 advisory opinion that states may not use force as a form of self-defense against non-state actors.

As far as international law is concerned, Israel’s war declaration and response are problematic. A formal declaration of war by Israel is tantamount to recognition of Gaza as a separate sovereign state against which it may be justified to use force as a form of self-defense. On the contrary, if Gaza is not a separate state but part of Israel, then its actions may violate international law.

No one should think what Hamas did was justified regardless of Israel’s policies in the Occupied Territories. However, with that said, how Israel treats Palestinians is possibly a form of genocide under international convention, or at the very least, it violates other international conventions such as the 1966 International Covenant on Civil and Political Rights. Israel is a signatory to these treaties. Legal action to determine if Israel violated either should have been brought before the ICJ.

But assume that Gaza is a state. Israel does have a right to self-defense under Article 51 of the UN Charter. Still, international law encourages peaceful means to resolve conflicts, or at the very least, to use international tribunals to resolve disputes. One option is the International Criminal Court. Unfortunately, neither Palestine nor Israel recognizes its jurisdiction, thereby foreclosing or at least limiting that as an option to hold either Hamas or, as some claim, Israeli officials such as Benjamin Netanyahu responsible for possible war crimes.

Moreover, if Palestine is a state, there are questions regarding whether Israel’s use of self-defense is legal. Self-defense is limited to proportionality, and it cannot take on actions that might amount to genocide, in violation of the 1972 convention. These are questions that are proper matters for the ICJ to address.

It is possible that the ICJ could be involved in other ways too. The UN General Assembly has requested an advisory opinion from the ICJ, which is currently before the Court. Hamas and the Palestinian state should have waited for this advisory opinion. It is also possible that the current conflict could be brought to the Court, but the authority of the ICJ could be complicated by the issue of statehood.

However, for many, the argument will be that turning to these international forums is futile. On the one hand, Israel has arguably violated international law with impunity over the years when it comes to the Palestinians, and despite repeated UN resolutions little has changed or been accomplished to resolve the disputes that led up to the events of October 7. There is a lot of truth to many of these claims and this begs the question of whether the current regime of international law can resolve the conflict that started on October 7 if it failed to resolve the disputes that led up to it.

International Law, War Crimes, and Ukraine

 This blog appeared in Fast Horse.

David Schultz Q&A

March 21, 2022

David Schultz forecasts next steps in the war in Ukraine.

“The U.S. seemed to think that with the end of the Cold War we won and Russia lost and Russia would simply accept the values of the West and join in. I learned from Lithuanian colleagues that the U.S. confused Russian security desires and thoughts of spheres of influence with that of the USSR such that with the latter gone the security threat from Russia would disappear. We were foolish to believe Russia would turn into a stable Western-style democracy. This is the same mistake we made in Afghanistan and Iraq and it all goes back to the arrogance of the U.S. in not understanding cultural differences.”

You have taught in Russia, Ukraine and Belarus. Have you been surprised by Putin’s move at this point in time? 

A decade ago I would have been surprised by Putin’s decision to invade. At that time Russia was a far weaker country and it looked as if it was integrating itself into a global financial system and therefore would have had too much to lose by invading. He enjoyed the support of the middle class who were experiencing rising incomes and some increase in personal freedoms. I saw both while teaching in Moscow. Russia and Putin looked content to be a regional power and a member of the European community, even if only a partial member. However, a lot changed in a decade.

For starters, Putin has been in office for 20 years. There is an arrogance of power that goes along with serving for that many years. Putin has consolidated power and is surrounded by a small number of yes men who do not serve as a check on his ideas.

I have also taught in Lithuania and many other former Soviet republics. What I learned from them is that Russia was always a threat. The U.S. seemed to think that with the end of the Cold War we won and Russia lost and Russia would simply accept the values of the West and join in. I learned from Lithuanian colleagues that the U.S. confused Russian security desires and thoughts of spheres of influence with that of the USSR such that with the latter gone the security threat from Russia would disappear. We were foolish to believe Russia would turn into a stable Western-style democracy. This is the same mistake we made in Afghanistan and Iraq and it all goes back to the arrogance of the U.S. in not understanding cultural differences. This is what Frances FitzGerald wrote about in Fire in the Lake where that book described our mistakes and assumptions about Vietnam.

Russia did not really join the West. Lithuania is now saying I told you so.

The U.S. encouraged Putin’s behavior by complacency. Obama’s pivot to Asia underscored Russia’s threat and Trump’s relationship with Putin also enabled Putin.  While by the time Biden became president much of the die may have been cast, Biden initially did not help in the sense of appearing to appease Russia or indicate what it would not do. After Afghanistan and earlier, when Obama did not act when he gave Syria an ultimatum on chemical weapons, gave Putin reason to think the U.S. would not act here if he went after Ukraine.

I am currently finishing a book written with colleagues from the Lithuanian Military Academy and Mykolas Romeris University. I have taught at both schools. The book looks at European security arrangements at a time when the U.S. may no longer be there or be a reliable partner in protecting Europe. Many in Eastern Europe are skeptical that the U.S. will fight for them if Russia goes further than Ukraine. They argue that the U.S. does not appreciate the threat that the Russian invasion of Ukraine poses to them and Europe and they see what is happening now as a test for U.S. reliability.

Do you hold out hope that there will be legal consequences for Putin at the Hague or in a law setting for his criminal actions? 

The International Court of Justice, which is a court of the United Nations, already issued a preliminary ruling saying that Russia’s military action against Ukraine was illegal and it should stop. That is an important ruling but Russia is disobeying it. Moreover, as a permanent member of the UN Security Council, it can veto a decision by that body seeking enforcement of the ICJ decision.

What role can legal justice play going forward? 

This is a unique case but there are parallels. During the Reagan Administration there was a decision by the ICJ against the U.S. It ruled that its arming of the contras in Nicaragua along with other aggressive action violated international law. Per se it did not deter the U.S.

However, having rulings against a country such as the U.S. or now Russia hurts a state’s standing in international politics. It adds legitimacy to sanctions and other measures to support Ukraine. It takes away legal arguments from Russia and it isolates them.

Putin historically like to use international law as window dressing for actions such as taking Crimea. This makes it harder for him to legitimize his decisions when the international community comes out against him and Russia.

Do you have a sense that the global community will keep legal restrictions on Russia for a period of time, to enforce sanctions, even after, hopefully, the military action subsides?

This is the big question. It is about the resolve of the U.S. and the world to secure short term objectives and then also what the long term goals are. If the short-term objective is end the war and get Russia out of Ukraine, then it may make sense to end some restrictions if Russia complies. If there is a larger longer-term goal to isolate Russia and force behavioral change, it may be a different story.

Does the U.N. have an enforcement mechanism to enforce reparations?

Maybe. The possible reparations may come from assets seized from the Russian Central Bank and other sources. If the war ended today the estimated cost of rebuilding is more than $100 billion. Someone has to pay for this. Even if it makes sense to put Ukraine in the European Union, it should not have to pay for violations of international law by Russia. There is a basic principle here that no one should profit from their own wrongs or escape accountability.

Reparations may make sense but the lesson of reparations from Germany after World War I is that they can backfire and cause other problems. The Russian people should not pay for the choices of the government.

You’ve written that Russia may be attempting to move the global order back to the 19th century. Can international law play a role to prevent this from happening?

International law norms are partially in place because of voluntary compliance. Russia now is challenging the post-World War II order, or even a post-Cold War order, it never accepted. The issue now is how united the world is in enforcing this new order and not allowing backsliding to old-fashioned power politics.

Do you hold out any hope for legal thinkers inside Russia to emerge to restore order? 

News out of Russia right now is hard to secure. I do know via friends that there is significant dissent with the country, including among legal thinkers, about the war and the direction Russia is taking. The sanctions are going to force an internal social and political battle and it will be interesting to see if and when the middle class and oligarchs revolt and how far Putin will go to suppress this.

When the Berlin Wall fell in 1989 one East German guard fired on individuals. The rest refused to shoot fellow Germans. I wonder and fear if that will happen in Russia.

Many Russians have family in Ukraine or vice-versa. I again wonder at what point Russian soldiers lose resolve to fight or kill people who look like them or whom they may be related to.

What are your memories of your time in Ukraine? Did you get to know Kyiv or other cities well?

I taught in Kyiv and Kharkiv. I have friends, colleagues, and former students in both. I have great memories.

In Kyiv I taught at the Taras Shevchenko National University in a gorgeous red building across from a lovely park. I remain in contact with many there. I had a lovely time at the opera house where I saw a show with a colleague. I visited Maidan Square and some museums. I did a program for the US Embassy there.

I taught at Simon Kuznets University in Kharkiv. What I loved about the school was that between classes they played classical music on the intercom. I was in a gorgeous building with stunning stained glass. I visited the performing arts center and toured the wonderful architecture. That city was the Soviet-era capital for Ukraine. I also lectured at Kharkiv University. Former students sent me a video showing the building where I lectured got blown up by the Russians. Other buildings I was in are gone now too. My closest colleague from Simon Kuznets I have not heard from in two weeks. Another person I knew who had a horse farm left with her kids and has fled to Albania leaving other family behind. It was sort of a Sophie’s choice move.

I am in daily contact with people from Ukraine and I miss them and wish I could do more.

I also hear from friends in Belarus and Russia. We want to make sure to stay friends despite what happens in the world.

There is a great line from the end of the movie Casablanca where Rick says to Ilsa: “Ilsa, I’m no good at being noble, but it doesn’t take much to see that the problems of three little people don’t amount to a hill of beans in this crazy world.”

We are trying to make sure that this crazy world does not upset deep and long friendships. But we all fear that each email or call will be the last one.

When a global power becomes a pariah on the world stage, what does history tell us about how legal measures can and should be used to keep a bad actor in a state of reasonable punishment?

Any predictions on how this conflict may resolve itself?

The lessons of history are not good. Often the world reacts to put that actor in place, such as after World War I, World War II, or even further back in time, with Napoleon, but the punishment is generally quite ugly.

Right now we are seeing the greatest test of the post-World War II legal order ever. Will economic sanctions, public opinion, and cyber operations prevail in the enforcement of a new legal regime or will we revert back to a previous era. It may be time to reread two post-World War II books. Humanism and Terror by Maurice Merleau-Ponty and Darkness at Noon by Arthur Koestler. Both capture a moment in time during the Cold War that may have returned.