Whether international law has the capacity to establish the rule of law is a question one might well ask today, as the world witnesses crimes against humanity committed in Israel against entire families, including babies, their siblings, parents and grandparents, and as Ukraine enters its second year of fighting Russia’s invasion of its land, an invasion in clear violation of codified and customary international law.
A look at the history of modern international law may shed some light on why it seems to be failing. Modern international law began with a group of committed internationalists after the First World War. They believed, as did many in the West, that this had been the ‘war to end all wars’, and they hoped to develop international laws that would ensure that the principles of human decency and peace would be perpetuated from then on. The internationalists were continental Europeans steeped in Enlightenment thought. Enlightenment philosophers believed that progress in the social sciences was as possible as progress in the natural sciences.
The First World War ended in 1918. The Treaty of Versailles, which was signed at the end of the war but never ratified by the US, included a requirement for the victorious countries to respect their minority populations. These provisions were highly unpopular and were subsequently often violated.
By 1933, Hitler had come to power in Germany. The Internationalists continued to meet until 1939, on the eve of the Second World War. During the next war, some would flee from France to England, others would lose their families in the Holocaust that followed. Despite the total failure of the Versailles system and their own efforts, they resumed their work with unflagging energy after the Second World War. Among them were René Cassin, author of the Universal Declaration of Human Rights and future Nobel laureate; Hersch Lauterpacht, Polish-born, Viennese-educated professor of law at Cambridge and future judge on the International Court of Justice; and Raphael Lemkin, who coined the term genocide and spent his life after the Second World War campaigning for the adoption of the UN Genocide Convention. Both UN documents insist on the importance of the individual in international law.
Today, the world is connected by technology and commerce as never before. In that sense, it has become truly international. International law insists that it too is global. But it is the creation of Europeans with a particular cultural, historical, social and religious (Judeo-Christian) background. By claiming universality, it applies to peoples who had no part in its creation and whose cultures, histories, social and religious backgrounds may have little in common with those who shaped modern international law. If one group believes that war is good, not evil, how can international law based on the demand for peace hope to be effective?
International law now recognises a right to self-defence. All other military operations are illegal unless previously authorised by the U.N. The U.N. today is incapacitated by the composition of its permanent members, who veto each other on major geopolitical issues. Thus, even after the UN’s limited attempt at monitoring in Bosnia failed to prevent a massacre, it refused to authorise NATO’s military incursion in 1995 to prevent further loss of life. Today, the requirement of UN approval for humanitarian military intervention is a virtual promise of inaction. Increasingly, therefore, scholars of international law are calling for humanitarian military intervention without prior UN approval, despite the dangers of abuse that this may entail.
Some in the international law community do not believe that war is necessary, and continue to believe that following an international law that mandates peace is the way to achieve a world of peace, even if it means tolerating some violations, however unjust, along the way, and even while acknowledging the UN’s paralysis in authorising humanitarian military interventions. Others, especially historians of war, tend to disagree. They argue that it was nuclear deterrence, not international law, that kept the peace during the Cold War, that war is endemic to human nature, and that it is a grave mistake to ever forget that war is a looming threat. After almost eighty years of peace since the Second World War, the West no longer believed that there could be another major European war, and so was deeply shaken by Russia’s invasion of Ukraine. This was also the mistake Europe made before the First World War, as there had been no major European war for a hundred years (1815-1914). Some believe that European peace was maintained for so long because of the extraordinary diplomatic skills of Metternich at the Congress of Vienna (1814-1815), and that similar skills in balancing the interests of all the major powers are the best hope today for avoiding future catastrophic wars.
If war is inevitable, some ask whether it can be moral. Those who believe it is never moral have even argued against rules of humane military conduct, believing that such rules make war more palatable to the public, that the crueler the war, the more likely the public will demand its end. Others believe that some wars are moral. They tend to favour strict rules of humanitarian conduct, including both the humane treatment of captured soldiers and the avoidance of civilian deaths wherever possible.
We live in a world of weapons that can destroy us all. International law has a role to play, but history shows that it does not prevent war when nations feel their interests are sufficiently threatened. Skillful diplomacy is undoubtedly also a necessary part of keeping the peace. But the reality that cannot be overlooked, and that is the most difficult for international law and public policy to address, is that the hearts and minds of populations are essential. Without them, laws will not be effective, no matter how well crafted, intended or desirable they may be.