By Mohamed Harees –

Lukman Harees

“The world order and American actions in the world have deep wiring” ~ Ben Rhodes

On 2 June 2022 President Biden published an op-ed in the New York Times titled ‘How the US is willing to help Ukraine’ in which he declared that Russia’s action in Ukraine ‘could mark the end of the rules-based international order and open the door to aggression elsewhere, with catastrophic consequences the world over’. Later, in a press conference at the conclusion of the June 2022 NATO Summit Meeting in Madrid, he warned both Russia and China that the democracies of the world would ‘defend the rules-based order’(RBO). There was however no mention of international law. The term RBO is so frequently used by American political leaders, that it ‘seems to have become a job requirement for a top position in the US foreign policy apparatus’ as per analysts. US’ failure to invoke international law and instead to refer on most occasions to a ‘rules-based international order’ is not an omission, but deliberate.

One view is that the RBO is based on principles that constitute the foundations of international law and in addition takes account of the broader sources of contemporary international law advocated by many scholars. An alternate view is that they are not rules as they are understood by lawyers. The manner in which the US has justified apparent violations of international law by its own forces or those of it close friends has inevitably resulted in a cynical, albeit plausible, explanation for the US preference for the RBO. According to this view, the rules-based international order may be seen as the US’ alternative to international law, an order that encapsulates international law as interpreted by the US to accord with its national interests, ‘a chimera, meaning whatever the US and its followers want it to mean at any given time’ and to ignore, evade or rewrite the rules whenever they seem inconvenient’.

According to John Dugard in the Editorial in Leiden Journal of International Law(2023), there are several reasons that may explain why the US prefers to invoke a ‘rules-based international order’ and not international law. First, the US is not a party to a number of important multilateral treaties that constitute an essential feature of international law. Second, the US has placed interpretations on international law justifying the use of force and the violation of international humanitarian law that are controversial and contested. Its interpretation of the right of self-defence to allow pre-emptive strikes and the use of force against insurgents/militants characterized as terrorists are widely disputed. Third of course is for the entire word to witness. The US is unwilling to hold some states, such as Israel, accountable for violations of international law.

The so called ‘Iron Clad’ US Israeli ties reaffirms ‘the unbreakable bonds between our two countries and the enduring commitment of the United States to Israel’s security’ and the determination of the two states ‘to combat all efforts to boycott or de-legitimize Israel, to deny its right to self defence, or to single it out in any forum, including at the UN or the ICJ’. This commitment explains the consistent refusal of the US to hold Israel accountable for its repeated violations of humanitarian law, support the prosecution of perpetrators of international crimes before the ICJ, condemn its genocidal assaults on Gaza (best portrayed as excessive enforcement of the occupation of Gaza and not self-defence as the United States argues), criticize its blatant violation of human rights as established by both the Human Rights Council and the General Assembly, accept that Israel applies a policy of apartheid in the Occupied Palestinian Territory, and oppose its annexation of East Jerusalem. And, of course, there is also the refusal of the US to acknowledge the existence of Israel’s nuclear arsenal or allow any discussion of it in the context of nuclear proliferation in the Middle East.36 Such measures on the part of Israel are possibly seen as consistent with the ‘rules-based international order’ even if they violate basic rules of international law.

Of course, double standards, exceptionalism, and hypocrisy are a feature of the foreign policies of states particualrly the US led West that accept international law and do not favour the RBO. Such conduct must be condemned as it undermines the notion of accountability for all states, irrespective of their position and friends in the international community. This allows assaults on Gaza to be interpreted as self-defence against terrorism, to condone the assassination of militants/terrorists by drones, the application of apartheid, the annexation of territory, and the continuation of an occupation which is widely seen as illegal.

The United States presented itself as the leader of a rules-based international order that promoted peace, security, and human dignity. American exceptionalism, however, undermined that narrative. America’s propensity to wage war unilaterally, especially its invasion of Iraq which wreaked untold suffering and disorder, undermined the multilateral foundations of the international order, weakened the authority of international law, and set a precedent of forceful unilateralism for other powers. U.S. counter-terrorism policies since 9/11 also eroded the credibility of the claim that human rights protection represents a principal value of the post-Cold War order. America’s violations of international human rights and humanitarian law in its war on terror combined with America’s non-cooperative, if not outright dismissive, attitude towards the International Criminal Court eroded America’s moral authority and undermined the integrity of the post-Cold War Code of Civilization. Author Stephen Hopgood even went so far as declaring that we are witnessing The End times of Human Rights.

After more than 2,000 U.S. dead, a war which US started ended  in failure, with the Taliban retaking control of Afghanistan in 2021, just as it did in 2001 when the US invaded. Under the caption, ‘The U.S. failed to learn the lesson of Vietnam. Will it learn from Afghanistan? The U.S. can’t win wars for countries’, Washington Post wrote , “The lesson of Vietnam — and Afghanistan — is that the United States can’t win wars for nations with weak governments battling against internal turmoil and external threats.. If American political and business leaders thought historically, American troops would not be fighting in Afghanistan and Iraq. The world has seen the internal and external hollowness of the Israelis and without US blind support, the Zionist regime would have crumbled under commonly perceived as  comparatively militarily weaker the 3 Hs (Hamas, Hizbollah and Houthis). More than 7 months in war, with the clout of West’ support, Bibi and his ultra rightist cohorts have not succeeded in achieving any of its military goals.

The Israeli assault on Gaza has been characterized by systematic human rights violations and a flagrant disregard for international legal norms. Israel thumbing its nose at international law has had little to no practical consequences, calling into question the very existence of a RBO — an order that many countries, including Sri Lanka, supposedly depend on for their stability and security. Israel’s intransigence notwithstanding, the ICJ orders based on the plausibility of genocide have serious implications not only for Israel, but other states as well.

South Africa’s genocide case against Israel at the International Court of Justice (ICJ) shook the foundations of the rules-based international order. The increasing number of state and non-state actors voiced their support for this case, and Palestinian liberation in general, signalled  the emergence of a movement for a more principled, fair and just international order. In contrast, the Genocidal enablers Israelis with West support have succeeded in making a mockery of International law and world order by ignoring the edicts of world bodies – a security council resolution, ICJ rulings and proposed ICC arrest warrant for Bibi et el. The fragility of the current rules-based order was however apparent long before the attack on Gaza. With powerful permanent members routinely vetoing United Nations Security Council (UNSC) resolutions according to their national interests and preferences, the international community has been struggling to take collective action to uphold humanitarian law, protect vulnerable communities and punish rogue actors.    

In a system built on asymmetrical and unjust colonial foundations, where financial, political and legal institutions have inherent shortcomings, selective adherence to international law has long caused dispute among nations. Israel’s war on Gaza, and the world’s response to it, however, have highlighted these existing shortcomings and hypocrisy, speeding up the system breakdown that was already under way. The West’s radically different response to Russia’s international humanitarian law violations in Ukraine and those of Israel in Gaza made it apparent that under the current rules-based order, all human life is not valued equally. Numerous countries in the Global South, many of whom have been on the receiving end of Western colonialism, view this as blatant hypocrisy.

Palestine has been asking for prosecution of Israeli perpetrators of war crimes, including crimes in Gaza, since 2009. And the Western powers defining what the rules are, appear to demand few limits on Israel’s asserted right to self-defence, whether in the amount of force, collective punishment, use of siege or famine as weapons of war, or even targeting of humanitarian organizations and killing of their staff. Finally, in one of the most serious distortions of occupation law, Palestinians who resist occupation—a right enshrined in international law—have been castigated as terrorists, a designation that is defined nowhere in international law. The ICJ is hamstrung by the pressure placed on it by its major funders and the politics that the Western powers bring to bear. US Senate has already threatened the ICC prosecutors

The growing support for the Palestinian cause across the world highlighted and stressed the need for an inclusive and fair political settlement that should address the root causes of the decades-old conflict and deliver long-term peace. Such an achievement, and precedent, hopefully strengthen cement foundations for a more principled and just rules-based order – one that protects the vulnerable from extreme acts of aggression and holds all countries equally accountable to international law. Israeli Impunity if left unchecked will spell disaster to RBO.

The weakness of the UN and international law agencies in enforcing ICJ/ICC orders and sanctions on rogue states like Israel, heightens the need for civil society to play a role. The existence of the ICJ orders for example, is a powerful tool in pressuring governments. Once the ICJ said that prima facie evidence showed that Israel was committing genocide, the narrative about Israel’s incursion into Gaza changed dramatically. Domestic lawsuits—following the precedents in the US, Germany, and the Netherlands—are likely to grow, along with the protest actions of millions of individuals who have taken to the streets, pressured their political representatives demanding a ceasefire and an end to arms and funds to Israel, and taken innumerable actions to protest the war on Gaza.

However, good news is that the civil society across the world has also been making demands and voicing aspirations for a more just and principled rules-based order through protests, boycotts, legal challenges and other nonviolent actions since the beginning of Israel’s war on Gaza. Even, civil society activists have challenged their governments’ complicity in Israel’s war on Gaza, and the double standards that have come to define the global order, in their national courts like in Netherlands. Few European countries have already recognised Palestine as a State, Millions including students have risen up against Zionist genocide in Gaza. These developments are serving as a warning to national governments that their disregard for international law can have consequences at home. They also demonstrate civil society’s determination to bring humanitarian values and principles to the forefront of international relations.

What is lacking is not international law but, rather, its consistent and universal enforcement. For decades, the five permanent members of the UN Security Council (the United States, Russia, China, Britain, and France) have repeatedly used their veto power in that entity to block UN action to maintain international peace and security. But change is possible. 124 UN nations have already endorsed a proposal for renunciation of the veto when taking action against genocide, crimes against humanity, and mass atrocities.

In the wider context, future peace is indeed in the balance, and it cannot be left to a tiny minority of global actors to determine the outcome. The world may be a long way short of having, in the most critical peace and security area, the kind of rule-based international order it would ideally like to have. But, national impunity is not inevitable, if civil societies force their governments of the world to take the necessary actions. Otherwise ,they continue talking of a “rules-based international order” while they avoid enforcing the rules?