21 November 2023

International law is a collective delusion

Samuel Moyn

As Israel wages its war against Hamas in Gaza, world leaders have called for international law to be observed. But this emphasis on the rules around the conduct of war falls short of what people imagine. The law is so permissive that Israel's actions might well be within its limits, and even if they aren't, there is no mechanism for the law to be enforced. In this interview, Samuel Moyn argues that a focus on humane warfare can be counterproductive, and that international law is impotent in the absence of a Hobbesian superstate.

Not since the Nuremberg trials after World War II has there been so much intense interest in international law, Samuel Moyn tells me as we start our Zoom call. It has become the framework through which people try to make sense of the two recent wars: Russia's invasion of Ukraine, and more recently the renewed, bloody conflict in the Middle East. The concept of a war crime has become a powerful tool with which we judge the actions of states, the type and levels of aggression they wage on others. But one key paradox remains at the heart of this framework. Many of us talk about international law as though it is something whose violation is met with consequences: an indictment, a trial, and ultimately the punishment of those found guilty. Only none of that accurately describes what happens when a state breaks the international laws governing war. So, if international law is not really enforceable, what is it good for?

Samuel Moyn, a professor of law and history at Yale University, is a strong critic of the international law framework that governs both the recourse to war and its conduct. But his critique goes well beyond what you might expect. In his book Humane Moyn argued that the way international law focuses on making the conduct of war less brutal, might have backfired, making wars more likely, more morally acceptable, and longer than in the past. That worry, that making war more humane is morally counterproductive, has a long, and distinguished pedigree. The Russian novelist Tolstoy thought the idea of humane war was morally absurd, akin to humane slavery, and the military theorist Clausewitz believed that making war less brutal would just lead to prolonged wars, and ultimately more casualties.

Moyn agrees with the spirit of Tostoy's and Clausewitz's critiques, but he also doesn't deny that making war more humane in recent decades has had some very positive consequences. "My country [the U.S.] can no longer do what it once did, like raze entire cities to the ground".

When it comes to Israel's retaliation against Hamas's atrocities, many, including President Macron, recognised Israel's right to self-defence, while at the same time being critical of the country for the degree of force being used in its bombing of Gaza. To begin with, Moyn has two technical objections against the received narrative that Israel is simply exercising its legal right to self-defence. First of all, it is not obvious whether there is such a legal right of self-defence against non-state actors, like Hamas. But also, Israel is essentially waging a war on its own territory. This is not a straightforward case of a state defending itself against another state.

But leaving these technical points aside, Moyn's deeper concern is that Israel may well be following international law in its military campaign in Gaza. At the very least, Israel purports to be doing so. The law requires states to discriminate between civilian and military targets, but allows for civilian casualties as collateral damage of a military operation. The killing of 11,000, - the number of those reported dead so far in Gaza, the majority of which are civilians, and half of which are children - can potentially be legal under the current framework.

Even though Moyn thinks many lawyers would argue that the principle of proportionality has been violated, he also thinks that Israel could plausibly make, and in fact it does make, the case that it hasn't. The proportionality principle is quite vague, requiring that "even a legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack”. Israel claims that each of its military attacks follows this proportionality calculus, but as Moyn points out, comparing civilian causalities with specific military gains does not make much sense, it's not comparing like for like - "it's just rationalising immense immorality".

The reaction to all this might be that the problem is that international law is simply too permissive as it stands. And that is certainly true, according to Moyn. But he also thinks that looking at the situation in Israel at the moment and concluding that what's needed is just stricter rules of war is wrong. "Asking what would it take to make the war really humane is the wrong framework. Wars, no matter how humane, cannot solve political problems."

But even if, as many have argued, Israel has indeed violated international law in cutting off power, water and food supply to Gaza soon after Hamas' attacks, an act described as the collective punishment of a people, forbidden by Article 33 of the Geneva Convention, who could enforce this potential violation? In theory, it would have to be the International Criminal Court. In practice, it almost certainly isn't going to happen. "Very rarely do legal institutions make a difference, and the ICC is not it."

This is where Moyn admits that international law is largely impotent. "The law is more symbolic, affecting the moral credibility of states." It can be useful as a providing a commonly accepted framework for people to speak about war, but in reality it is a proxy for morality.

"People prefer it because it's allegedly binding in a way that moral claims are not. But it's a big collective delusion. It's all about the symbolic meaning of law, not about its actual function. If its rules are broken, that doesn't mean it's enforced, or that there is accountability."

That was not always the case, Moyn reminds me. During the Vietnam war, or even during World War II, the grounds of the debate were not the legality or illegality of war, but morality and foreign policy. I ask Moyn whether he thinks this shift from the charged vocabulary of morality to the more bureaucratic vocabulary of law is a mark of progress. While sceptical of the current framework, and very conscious of its misgivings, Moyn has no problem acknowledging the benefits that have come from it. "War crimes have been less grievous than they were in the past, at least in the case of Great Powers who can avoid war crimes more easily, as they have other options."

Which brings us to the topic of the selective enforcement of international law by the Great Powers. The veto power that permanent members of the UN Security Council have essentially gives them the ability to write themselves a legal blank cheque when it comes to the recourse to war. Moyn is quick to point out that the non-universal application of the law, with the powerful getting away with things the weaker agents can't, is the same as in the case of domestic law.

"The law is a political tool that favours the powerful. It then becomes a political contest to try and change that. My job is to suggest we don't put the rule of law on a pedestal, because it turns out it's not a tool for justice. But that's not to say there are better alternatives", Moyn quickly follows up. We should just be clear that the law doesn't somehow stand above politics, it is itself part of the political struggle.

To the question of how we might try to improve the international legal framework, Moyn has two suggestions. If we are to stick to this framework, we need to i) make it much harder for Great Powers to get away with waging war in the first place, by experimenting with alternative arrangements within the United Nations and ii) lower the bar of what counts as a war crime, given that at the moment the law is far too permissive, and can grant those who purport to comply with it the moral high ground, while at the same time killing thousands of civilians.

I was worried that my final question might come across as naive, but it's been playing on my mind a lot: Why is it that international law allows so much more violence than laws permit in a domestic context, within the confines of a state? Moyn's response was that the Realists are essentially right - realism being the framework that understands international relations between states as a competition for power and security, in the absence of any overriding authority. States are able to establish a monopoly of legitimate violence, as Max Weber argued, but an equivalent doesn't exist in the international context. Like a Hobbesian state of nature then, states fight for power and security, in a war of all against all, in a brutish fashion. For Moyn, "short of global democratization, there is no solution". The philosophers who spent some time pondering the possibility of a super-state, or a universal monarchy, like Kant, as a way of guaranteeing peace, rejected the idea as both unworkable and potentially dangerous, leading to a global tyranny. But, Moyn gestures, perhaps it's time to revisit that worry and follow the Hobbesian remedy, only at the global level.

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