Last October the New Left Review published a very timely article by its premier writer, Perry Anderson.
It was a critique of international law as, throughout its history, a tool of Western imperialism. Anderson approvingly quotes the 19th century legal philosopher John Austin, who argued that “every law is a command”.
Accordingly, “the so-called law of nations consists of opinions or sentiments current among nations generally. It therefore is not law properly so called … a law set by general opinion imports the following consequences—that the party who will enforce it against any future transgressor is never determinate and assignable.”
In other words, the laws made by states are genuine “commands” because these states will enforce them and punish their violation. But there is no international government capable of making and enforcing laws.
So, Anderson argues, international law is “opinion, what today we would call ideology. There, as an ideological force in the world at the service of the hegemon ie of the United States and its allies, it is a formidable instrument of power.” Thus “wars waged by the liberal powers dominating the system were selfless police actions upholding international law. Wars waged by anyone else were criminal enterprises violating international law.”
Last week, however, this normal pattern was interrupted. The International Court of Justice (ICJ) at the Hague, normally a reliable echo chamber of Western interests, ruled that Israel had a case to answer on the charges of genocide laid against it by South Africa. It also ordered it to restrain its operations in Gaza and to make regular progress reports.
Both sides of international law as Austin and Anderson analyse it are present in this judgement. Who will enforce it remains neither “determinate” nor “assignable”.
The ICJ may well have avoided granting South Africa’s application to it to order a ceasefire because it knew Israel would defy it. As it is, the US and the other leading Western powers effectively rejected the judgement in their plainly coordinated ploy to divert attention.
They immediately suspended funding to UNRWA, the United Nations agency providing material support for the Palestinians, on the dubious basis of an Israeli dossier accusing 12 employees of taking part in the 7 October attacks. But this doesn’t alter the significance of the judgement at the level of “opinion”.
It was the most immense ideological defeat for Israel and its Western imperialist backers.
The Israeli genocide scholar Raz Segal writes in the Los Angeles Times that the crime of genocide “was created in December 1948 and based on the view that Nazism and what we now call the Holocaust were exceptional. This served a purpose—it separated the Holocaust from the piles of bodies and destroyed cultures that European imperialism and colonialism had left around the world in the preceding few centuries.
“The concept of genocide functioned to protect the exceptional status of the Holocaust and Israel in the international legal system. Until now.
With the ICJ ruling that Israel’s attack on Gaza is plausibly genocidal, every university, company and state around the world will now need to consider very carefully its engagement with Israel and its institutions. Such ties may now constitute complicity with genocide.”
Thus a major blow has been struck at the long-standing effort by Israel and its allies to use the Holocaust to justify, not simply its existence, but the aggressions it has committed ostensibly in self-defence.
My guess is that the blatancy of the carnage the Israel Defence Forces are inflicting in Gaza and of the genocidal language used by ministers and soldiers alike forced the ICJ’s hand. To maintain their credibility, especially in the Global South, they had to be seen to be responding to South Africa’s case. To function effectively as an ideology, international law has to maintain a minimal degree of consistency.
The far right in Benjamin Netanyahu’s government reaffirmed their genocidal intent by participating in a conference last weekend to plan the colonisation of a Gaza cleared of Palestinians.
They can be defeated only by a worldwide struggle. But that struggle received a boost at The Hague last week.Original post