USA takes sledgehammer to international law

The great artist Michaelangelo completed his “David” and some other seminal works before he turned 30. Imagine if, a few decades later, he had carried a sledgehammer along to where “David” stood in Florence’s most famous public square, and set about smashing his masterpiece to pieces…

That is, roughly, analogous to the story of what the U.S. government has been doing in recent years– and more intensively, over recent months– to the whole structure of international law that Pres. Franklin D. Roosevelt so painstakingly crafted at the end of World War 2.

The past seven days have seen two momentous events. On July 19, the International Court of Justice (ICJ), which is the highest court in the whole world, adjudicating only conflicts between states, not individuals, issued a landmark judgment to the effect that, inter alia:

• (#3) the State of Israel’s continued presence in the Occupied Palestinian
  Territory is unlawful;
• (#4) the State of Israel is under an obligation to bring to an end its unlawful
  presence in the Occupied Palestinian Territory as rapidly as possible;
• (#5) the State of Israel is under an obligation to cease immediately all new
  settlement activities, and to evacuate all settlers from the Occupied Palestinian Territory; and
• (#6) the State of Israel has the obligation to make reparation for the damage
  caused to all the natural or legal persons concerned in the Occupied Palestinian Territory.

The full text of the judgment, a summary of it, and the accompanying comments of several individual members of the ICJ bench can all be accessed via this page on the ICJ website.

The ICJ bench has 15 members, coming from (but notably not representing the policies of) 15 geographically dispersed member-states of the United Nations. The judges typically serve nine-year terms. Since February, the President of the court has been Lebanese jurist Nawaf Salam. The July 19 ruling was issued in response to a request from the U.N. General Assembly and constitutes the judgment of the highest court in the world on the matters considered. This judgment, while not self-implementing, is definitive and cannot be appealed to any other court, anywhere.

On the seven substantive rulings the court issued in this case, including the above four, the supporting votes recorded (out of the 15) came to eleven, twelve, or fourteen. You can see which judges voted how on all the matters ruled on, here (PDF).

The second momentous event came yesterday, July 24, when Israel’s prime minister Benjamin Netanyahu– a man named by the (separate) International Criminal Court, ICC, as a probable indictee on charges of war crimes and crimes against humanity for his actions on Gaza– came and addressed the U.S. Congress, garnering more than 20 standing ovations as he did so.

Roughly half the Democratic members of Congress and senators skipped the Netanyahu speech, and there were massive protest demonstrations all around the Capitol during his appearance. But Netanyahu attracted an enthusiastic crowd of Republican and some Democratic legislators. And with Pres. Joe Biden and Vice-Pres. Kamala Harris scheduled to meet with him today– before he heads to Mar-a-Largo to meet with GOP presidential candidate Donald Trump–it is clear that he still has considerable support from the legislative and executive branches of the U.S. government. (Whose president still continues to send him large quantities of weaponry and technical-military help for his ongoing genocide in Gaza, along with assiduously continuing to protect Israel’s position in all international fora.)

So much for the “rule of law.”

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The United Nations is very far from being a perfect organization. In particular, the arrangement under which five states– the USA, Britain, France, Russia, and China– are permanent members of the U.N. Security Council and can each exercise a complete veto over any resolution or plan of action proposed within it means that these “P-5” members exercise what looks like a permanent condominium over the conduct of international affairs.

The inclusion of geographically tiny Britain and France in that P-5 group was a reflection of the fact that, when the initial plans were drawn up for the new United Nations back in Fall 1944, those two West European powers still had control over vast, globe-spanning empires.

Paris had only recently been “liberated” from Nazi occupation at that time. But it and Churchill’s government in London made sure that the new organization would not hurry to give self-rule to the hundreds of millions of peoples from the Global South whom they held in their thrall in their empires. In 1947, the peoples of India were able to wrest control of their affairs from the chaotically over-stretched British empire. But most of Britain’s other subject peoples, like those of the French and Portuguese empires, had to struggle hard and at great cost for many years after 1945 before they were able to win their independence. And the United Nations, a body in which London and Paris continued to hold that veto power, gave them vanishingly little support as they did so.

So it’s absolutely true that the United Nations is not and has never been a perfect organization. (And hey, even Michaelangelo’s “David” had its detractors.) But the United Nations and the many bodies associated with it have made a strong contribution over the past 80 years to trying– sometimes successfully– to steer conflicts among nations away from the path of war; to building a shared sense of a global humanity in which all people(s) should be able to enjoy equal rights; and to establishing fair and decent rules of interactions among the different sections of global humankind.

So now, sledgehammers in hand, here come the USA-ian heirs to the architects who in 1944-45 had crafted that U.N. structure… and for some years now they have been laying waste to it, and bad-mouthing it, and de-funding it, and generally maligning and undermining it, with gleeful abandon. And never more disturbingly so than at present.

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The ICJ is the highest judicial body in the world. Its judges deliberate over two kinds of cases: those in which two or more states have a conflict and one of these states appeals to it for adjudication– as happened with the conflict that South Africa had with Israel regarding Israel’s behavior in the OPTs, on which the ICJ issued a provisional ruling back in January– and those in which the U.N. General Assembly votes to ask the court to issue an “Advisory Opinion.” This latter mechanism was the origin of the July 19 ruling, and also the origin of the ICJ’s less extensive 2011 ruling on the illegality of the “Apartheid Wall” that Israel had built within the occupied West Bank.

But the ICJ is not, strictly speaking, an organ of the United Nations. Its origins predate the establishment of the U.N. (and it may well continue to operate for long after the U.N. crumbles, should that happen at any point.) The official history posted on the ICJ website dates the origins of the idea of the ICJ, as a body dedicated to fair arbitration of claims contested between separate nations, back to 1794.

As noted above, the ICJ’s rulings are not self-implementing; and in the case of the July 19 ruling it will certainly take determined action by the international community, and specifically by the U.N. Security Council, in order to win implementation of all, or even of any part of, the ruling.

Here are two more key parts of the July 19 ruling:

• (#7) all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory and not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the Occupied Palestinian Territory;
• (#9) the United Nations, and especially the General Assembly, which requested this opinion, and the Security Council, should consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence of the State of Israel in the Occupied Palestinian Territory.

We need to remember that over the 57 years of Israel’s completely illegal occupation of the West Bank (including East Jerusalem) and the Gaza Strip, the United States has violated many of the principles embodied in these rulings in many serious ways. Most specifically, it has for many decades continuously enabled and supported Israel’s settlement-building projects in various parts of the OPTs (as of Syria’s equally occupied Golan.) And ever since 2017 the U.S. government has given explicit recognition to Israel’s completely illegal annexation of Greater East Jerusalem and Golan. It was Pres. Donald Trump who first extended those two recognitions to Israel; and ever since Joe Biden has been in the White House he has done nothing whatever to rescind them.

Paragraphs 278 and 279 of the ICJ ruling are well worth reading (click to enlarge):

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So here we have the U.S. government, which was the major architect of the whole post-WW2 international system, acting for many decades now as a crude scofflaw, eagerly violating some of the international system’s most fundamental principles. We could describe this behavior as a case of crass infanticide? (The scofflawry with which Israel attacks the fundamental tenets of the United Nations can, by contrast, best be described as patricide, given that the State of Israel was itself born wholly– in terms of current international law– from a decision the U.N. General Assembly adopted in 1947, to create a “Jewish State” in Palestine.)

But enough with intra-familial analogies! The big question now is What Is To Be Done? And this question applies not “just” to the unspeakable genocide that Israel has been continuing to perpetrate in occupied Gaza but also to the entirety of the brutally violative actions it has taken in all of the territories it has held under military occupation since 1967– in East Jerusalem and the rest of the West Bank, and in Golan, as well as in Gaza.

My view, based on the decades of my life that I have spent studying this situation and its historical antecedents is that now, in 2024, we need the rest of the “international community” to come forward and confront not just Israel’s power, position, and depredations in West Asia, but also the power that the United States has, and has used, to prop up and support all of Israel’s depredations there.

There is an important antecedent for what could, and should, be done. Back in 1956, Britain and France colluded with Israel in a major act of military aggression against Egypt. On that occasion, the United States was able to force those “Tripartite” aggressors to give up both their territorial conquests in Egypt and their goal of effecting regime-change in Egypt. And it did that by using raw economic power against them… stacked against which the possession by London and Paris of vetoes in the Security Council paled into insignificance.

Could we expect the rising economic powers of the emerging multi-nodal “world order” to be ready to use a similar maneuver against the “Bipartite Aggression” that Israel and the United States have been waging for so long now against Palestine? I certainly hope so. Even if this were to happen tomorrow (which I don’t expect), it would be far, far too late for all the Palestinians in Gaza who’ve been subjected to sickeningly genocidal levels of violence and starvation for the past 9.5 months.

I have been writing for some time now that “Gaza has always been the crucible for the Palestinian national liberation movement in modern times.” Now, while I weep and cry out for all the losses that the Palestinians of Gaza have been suffering, I am starting to hope that, just maybe, this suffering might also in the future be seen as the crucible in which a new and more just and equitable global order can start to be built.

Please, may it come very, very soon.