On July 19, 2024, the UN’s court
rendered an opinion to the UN’s General Assembly on the legality of Israel’s
occupation of Palestinian territories including East Jerusalem. The Israeli
government wasted no time in publicly dismissing the International Court of
Justice even though the UN had created Israel. As if the creature is greater
than its creator, which is a rather unbiblical view, Israel’s prime minister
had dismissed two earlier verdicts of that court against Israel’s military incursion
into Gaza, which resulted in the deaths of more than 35,000 and displaced over
a million Palestinian residents. What are we to make of international law
itself? Can we rightly call it law even though no enforcement mechanism necessarily
exists for it? By necessarily, I mean something more than a voluntary
coalition of willing countries, which of course cannot be counted upon.
At the end of 2022, the UN’s General
Assembly requested that the International Court of Justice (ICJ) “render an
advisory opinion” concerning “the legal consequences arising from the ongoing
violation by Israel of the right of the Palestinian people to
self-determination, from its prolonged occupation, settlement and annexation of
the Palestinian territory occupied since 1967, including measures aimed at
altering the demographic composition, character and status of the Holy City of
Jerusalem, and from its adoption of related discriminatory legislation and
measures.”[1]
A year and a half later, the ICJ issued its landmark opinion. ICJ President
Nawaf Salam said the court had found that Israel’s “continued presence in the
Occupied Palestinian Territory is illegal. . . . The State of Israel is under
the obligation to bring an end to its unlawful presence in the Occupied
Palestinian Territory as rapidly as possible.”[2]
Accordingly, settlement activity should end and existing settlements should be given
up in the occupied West Bank and East Jerusalem. The court also mandated the
payment of reparations to Palestinians for damages caused by the occupation.
The ICJ indicated that Israel’s “policies and practices amount to annexation of
large parts of the Occupied Palestinian Territory,” and that Israel was “not
entitled to sovereignty” there.[3]
Additionally, according to the BBC, “the court said Israeli restrictions on
Palestinians in the occupied territories constituted ‘systemic discrimination
based on, inter alia, race, religion or ethnic origin’” and Israel “had
illegally exploited the Palestinians’ natural resources and violated their
right to self-determination.”[4]
In reaction to the exhaustive opinion
on which the court had been engaged since early 2023, Israel’s prime minister
called the decision one “of lies.”[5]
It is precisely on account of such jejune denial (frankly, that could be
expected from a teenager) that international law and courts are necessary. Incidentally,
lies, or fabrications, pertain to facts, whereas the court issued an opinion.
Netanyahu’s category mistake may be indicative of a knee-jerk reaction. His other
category mistake was to reference Jerusalem as the homeland of Jews,
whereas the court’s opinion pertains to Israel and thus Israelis.
A religious claim is distinct from a political or legal one, and
the court (and the General Assembly) were solely concerned with the latter. The
court also held that governments helping Israel in its occupation are also
culpable, and the United States also promptly criticized the court’s decision,
which was, at the very least, inconvenient politically.[6]
In issuing a judicial opinion for
the General Assembly, the court noted the nonbinding nature of the decision.
But is any international law, even if in the form of a verdict by an
international court, binding on any sovereign country? The nonbinding feature of the court’s opinion
is thus a red herring, sidestepping the proverbial invisible elephant in a
room. The sheer fecklessness of international law itself begs the question of
whether it is indeed law or something less, such as a guideline that governments
can take or leave at will. To be sure, even immaturely dismissing a mere
guideline as exhaustively undertaken—at least in terms of time—cogently (i.e.,
internal consistency) reasoned, and complete as that of the ICJ here is (or
ought to be) blameworthy. Yet given the severity of the infractions committed
by Israel in its longstanding occupation, something stronger than a guideline
is warranted. So we have arrived face to face with the question of whether a
law that cannot be enforced is nonetheless a law.
Kant refers to the law of reason
owing to the necessity of reason. Two plus two simply cannot equal five. That
the answer is four has necessity. So too does law, according to Kant. But
a law does not have necessity if it cannot be enforced—if people can ignore a
law with impunity. It can of course be objected that the kind of necessity that
a fact of reason enjoys in the human mind does not apply to the sort of social
reality that covers social organization. But it contracts reason to say, we’re passing
a law and we know that it cannot and will not be enforced. In other words, to claim
that something is a law and furthermore that no enforcement mechanism exists or
can be counted on nullifies the something being a law.
Unless or until there is such a thing as international law, governments will be free to accept or reject the opinions of international courts as just that: opinions. Unless or until national sovereignty is qualified rather than absolute, governments will be subject to might, as that of Ukraine has been subject to Russia’s might since Russia began its invasion by taking Crimea in 2014. Indeed, Israel acquired Palestinian land as a result of the 1967 war, and the Israeli government was conveniently taking this result of might not only as right, but also as if it were a fact of reason immune to the error of falsification.
In the want of political development beyond the nation-state, the global system will remain stymied in a Hobbesian state of nature in spite of having an institutional infrastructure. Without international law, it is actually rather amazing that international relations are not more chaotic than they are. Even were there a global federation of nations, Kant claims that peace would merely be possible, rather than probable. I submit that it would be more probable were the federal level of such a federation to have the military (and economic) means to enforce international law. Without any such means, the UN cannot claim to have or much less to enforce international law. Heading into 2024, the governmental heads of Russia and Israel knew this only too well, and thus could exploit the common misconception that there is such a thing as international law.
See: "Israel Legalizes Illegal Settlements on Palestinian Land."
2. Raffi Berg, “UN Top Court Says Israeli Occupation of Palestinian Territories Is Illegal,” BBC, July 20, 2021.
3. Ibid.
4. Ibid.
5. Ibid.
6. Kanishka Singh, “US Criticizes ICJ Opinion on Israeli Occupation of Palestinian Territories,” Reuters, July 20, 2024.
