How do you solve a problem like the world order?

We have had one – an order, a way of arranging international relations through institutions, treaties, law and norms – for virtually eight decades since the end of World War II. It has had its ups and downs and gone through some changes, though nothing fundamental. But now, so much seems to be going wrong at once – more armed conflicts with rising death tolls, worsening ecological disruption, growing economic inequalities and fragmenting social cohesion in numerous countries.

It all adds up to system failure on a world scale. This post, number 5 in a series based on the introductory chapter to the recently released SIPRI Yearbook 2024, focusses on the importance of laws and established norms in the world order.

Against war

You might sometimes be forgiven for not realising it, but the foundations of the current international order include principles that govern and limit armed conflict. All states have signed up to them in the UN Charter: the first stated purpose of the organization is, “To maintain international peace and security”.

Because discussions on these issues often get a bit blurred and distracted by side issues, it is worth recalling the clarity with which the fundamentals are stated in the UN Charter. Here are the first four points in Article 2.

1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

UN Charter, Article 2, Paragraphs 1 – 4

There you have it. All states have sovereignty – none is worth less than another’s. Disputes are to be settled peacefully. Force may neither be used nor threatened against another state’s independence or territorial integrity.

If a state has to go to war, there are further legal limits on what it can do under what used to be called the Laws of War, now known as International Humanitarian Law (IHL). It is primarily embodied in the Geneva Conventions and the Additional Protocols. States are also constrained by the Universal Declaration of Human Rights and other treaties and declarations, such as the Conventions on refugees and against genocide.

The strictures against launching a war are largely a product of the modern age. It was a general understanding for centuries that war should only be undertaken for good reason but there was no law to stop a ruler launching one. This lasted until the victors of the Second World War retroactively applied a legal principle enunciated during the League of Nations period to punish German and Japanese leaders for the crime of launching a war of aggression.¹ Strictures against particular behaviour during a war, such as avoiding harm to civilians and disproportionate destruction, go back further.

IHL is informed by the ‘just war’ tradition; this is not so much a justification for war as a framework for figuring out how to act ethically amidst the brutality and cruelty of war. ‘Just war’ is a Christian tradition but there are counterparts to it in Islam and other religious traditions.² Although discussion of the ‘just war’ framework only rarely surfaces explicitly – Barack Obama’s Nobel Peace Prize acceptance lecture was a notable exception – our everyday discussions of war crimes, aggression, atrocities, treatment of refugees and indiscriminate attacks on civilian targets reflect that way of thinking.

Double standards

Reflecting this international law and its supporting moral traditions, western leaders and opinion makers rightly condemned Russia’s aggression against Ukraine, its massive destruction of civilian areas and the atrocities committed by its troops, of which detailed evidence has emerged.

There was therefore no way for many of those same leaders and opinion makers to evade the charge of double standards when they did not take a similarly clear-eyed view of Israel’s actions in Gaza in the last quarter of 2023 and during the first half of this year.

A generous perspective might acknowledge that the scale of the 7 October attack by Hamas – estimated to be the third most lethal terrorist attack of all time – together with the kidnappings and other abuses blocked the view as Israel’s response took shape. But anybody who had paid attention to earlier actions by Israel in response to less deadly attacks by Hamas in 2008-9, 2014 and 2021 (500,000 civilians were displaced in 2014) would expect a destructive response from Israel with massive impact on Gaza’s civilian population. And that is what quickly unfolded.

Israel’s bombing of Gaza is among the most severe civilian punishment air campaigns in history.  In not much more than three months, more than half of Gaza’s buildings were reportedly destroyed or seriously damaged. This was far beyond a proportionate response and was not getting the Israeli hostages released. More than anything, it looked like collective punishment of the Palestinians. But still in the West the arguments went on about whether to call for ceasefire, or humanitarian pause, or not to call for anything at all. By the time of writing this post, 90 per cent of Gaza’s population has been displaced, many of them multiple times – and still Israel presses on with its attack. Positions, however, have shifted and the calls for Israel to desist are getting louder.

The UN “faces a potentially existential dilemma” when Member States disagree about basic norms and laws.

A New Agenda for Peace, July 2023

The International Court of Justice

Towards the end of 2023, South Africa brought the war to the International Court of Justice (ICJ), charging Israel with breaching the 1948 Genocide Convention. The court’s initial judgement, delivered in January, assessed the case as having aspects that were ‘plausible’, meaning worth looking into. While there is little doubt that Israel’s military offensive in Gaza contravenes important aspects of IHL, not least because of the destruction of hospitals and the scale of civilian suffering, it is not clear that it breaches the Genocide Convention. In the convention, genocide is defined as a deliberate act to destroy a people; that is, its key distinguishing characteristic lies in intention, not in the scale of death and destruction alone. The South African case before the ICJ referenced statements made by prominent Israelis that appear to express or could be interpreted as expressing genocidal intent. A leaked internal Israeli government document could also buttress the case. 

The ICJ does not generally move quickly to final judgements so it may be some years before we know whether it regards the evidence of intention as sufficient. In the meantime, the January 2024 initial judgement bound Israel to distinguish between combatants and non-combatants and to let humanitarian aid flow. In March, responding to a further application by South Africa, the ICJ ruled that Israel must take effective measures to fulfil its IHL responsibilities, as stated just two months before. And in May, responding again to a South African application, it issued an order that “Israel must immediately halt its military offensive” (paragraph 50).

Josep Borel, the EU’s High Representative for Foreign Affairs, responded to the judgement in a blog. Pointing out that all UN Member States must comply with ICJ decisions, he wrote, “We can therefore only emphasize the crucial importance of fully respecting this decision of the ICJ.” And as he added in a quiet acknowledgement of the double standards criticism, “Introducing caveats, objections or exceptions based on non-legal grounds damages the rule-based order, damages our values and will damage our international standing and weaken our position on other issues including Ukraine.”

Perhaps consistency is slowly and belatedly edging its way back into the West’s discourse on today’s wars.

More double standards

It is worth pointing out, however, that the critique of double standards does not apply only to the West. Take the example of South Africa, which deserves credit, whatever the detailed legal merits of its case, for turning to the ICJ over Gaza. It has been effective in keeping the moral and political pressure on Israel and on the West.

That makes its silence on Ukraine all the more disappointing.

In March 2022, the ICJ called on Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” (paragraph 86). Russia did not and the South African government, later turning to the authority of the ICJ over Israel and Gaza, has not objected to that disrespect for the court’s authority. In November 2023, a month into Israel’s offensive on Gaza, President Ramaphosa called on the International Criminal Court (ICC)³ to initiate prosecutions of war crimes in Gaza, yet had been strongly against arresting Putin under the ICC’s arrest warrant for large scale, forcible deportation of children from Ukraine to Russia.

South Africa’s neutrality, criticised in different ways, and defended as active non-alignment by the national security adviser, leaves it in a position on Ukraine that is oddly parallel to the West’s on Gaza. The government can only justify its stance by its participation in a peace mission and evident commitment to resolving the conflict peacefully; after all, Western governments likewise want a peaceful settlement in Gaza.

But international law calls not just for peace, in the sense of no fighting, but for justice.

The damage

Inconsistency about breaches of international law including IHL damage the world order. This argument is well made in A New Agenda for Peace, issued by the UN Secretary-General in July 2023: 

“The United Nations is, at its core, a norms-based organization. It owes its birth to an international treaty, the Charter, signed and ratified by States. It faces a potentially existential dilemma when the different interpretations by Member States of these universal normative frameworks become so entrenched as to prevent adequate implementation.”

The international order is in large part a reflection of the realities of power in the world when it was established, but it is about more than power. It is also a matter of legitimacy, so norms and ethics matter, as does moral clarity. This is why the double standards argument is not about scoring points at the expense of this, that or the other government, leader or commentator; it is about issues that are fundamental to the effectiveness of international law and the prospects of settling conflicts peacefully.

In short, order needs an adequate degree of agreement on normative issues; when that diminishes, so does international order. And the ones who suffer most are the ones that have always suffered most – the poor and the powerless.

Loyalty?

Think again about double standards. In conflict, the instinct of the outsider is often to take one side or the other. But before picking one conflict party or the other other, our loyalty should be with the body of law and established norms that have been developed to prevent war and to manage it as well as possible if it breaks out. And the reason for that is that our first loyalty should be to people and their well-being.

So let’s be blunt. South Africa is right over Gaza (more or less – on the details of the genocide case, let’s await the ICJ) and wrong over Ukraine. But neutrality between Russia and Ukraine and supporting a peace deal now means rewarding Russian aggression, which the UN Charter says is wrong. Likewise but opposite, the West has been right over Ukraine and wrong over Gaza. Not supporting a ceasefire by December 2023 at the latest means tolerating the destruction, displacement and misery that has been caused since.

The path ahead

The overall question that this series of posts asks is, What world are we shaping for ourselves in the coming decades if these trends continue unchanged? The answer is a pretty bleak one. The way that law is being bent, broken or ignored, the double standards and inconsistency of too many actors and observers – these are warning signs.

If we cannot get off this path, we are heading towards a world with less law, fewer generally accepted norms, and weaker constraints on powerful states’ behaviour.

Law is made on the basis of political contention and politics is about power, so of course law – domestic as well as international – always tends to protect the rich and powerful and uphold their interests more than it protects and upholds the poor and powerless. And of course the rich and powerful get away with bending and breaking law more easily. But without law, the poor and powerless would be even worse off.

The path we are on leads back, perhaps, to a world in which, as the Athenian general and historian, Thucydides, observed, too many people think the question of right only arises when power is equal. Otherwise, ‘(T)he strong do what they can and the weak suffer what they must.’ It is a view that leads even the powerful to their ruin. A world in which there is a war of all against all.⁴ A world in which the problems of ecological disruption, pandemic risk, international crime, people trafficking and armed conflict cannot be tackled by international cooperation and are too big for any state acting alone.

It is a world in which cynicism and self-interest predominate and progress is a lost dream.

The good news is that trends do not have continue unchanged. But it will take hard work and coordination to head them off.

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Notes

1. MacMillan, M., Peacemakers: Six Months That Changed the World (John Murray: London, 2001); and Hathaway, O. A. and Shapiro, S. J., The Internationalists and Their Plan to Outlaw War (Penguin Random House: London 2017).
2. Johnson, J. T. and Kelsay, J. (eds), Cross, Crescent, and Sword: The Justification and Limitation of War in Western and Islamic Tradition (Greenwood: New York, 1990).
3. The International Court of Justice was founded in 1945 as part of the UN and deals with cases between countries, where one government wants legal action against another. The International Criminal Court is based on the Rome Statute of 1998, agreed between 120 governments. It started operations in 2002 when enough states had ratified the Rome Statute. It deals with the responsibility of individuals, including government leaders, for war crimes and crimes against humanity such as extreme abuse of human rights.
4. Or, as 17th century British scientist and political philosopher, Thomas Hobbes, put it, ‘of every man, against every man’ (Leviathan, 1651; 1962 edition, pub. Collier Macmillan p100).