In Gaza, Israeli Impunity Casts a Shadow on International Law’s Legitimacy Commentary
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In Gaza, Israeli Impunity Casts a Shadow on International Law’s Legitimacy

Francesca Albanese, the UN Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, said in a statement about her latest report on the situation in Gaza:

In this darkest hour, the international community cannot continue to ignore that it is Israel’s project to rid Palestine of Palestinians in defiance of international law and the world’s failure to call Israel to account that has led to genocide laid bare in Gaza.

Albanese additionally confirmed that “[d]enial of the reality and the continuation of Israel’s impunity and exceptionalism is no longer viable.” The Israelis’ violations of international law in Gaza described by Albanese as “impunity” and “exceptionalism” were also described as “failure[s] of international law.” (here, here, and here, and discussed in similar terms here). Israel’s impunity in Gaza and the international community’s reaction to its crimes there have triggered the question of the legitimacy of the international legal system. How could we defend the legality of a system of rules when such rules are discernibly not equally applied to its subjects? Are there any negative implications of the continuance of Israel’s impunity on the legality of the international system? In this short contribution, I argue that the continuance of “Israel’s impunity” is severely undermining the international legal system and shaking the world’s faith in its capacity to bring justice. And that such a compromised legitimacy is not without consequence. I contend that the continuance of Israel’s impunity is creating a debunked discrepancy that exposes the gaping disparity between the norms of international law and its practical functionality. Moreover, it exposes blatant inequality in the ways through which international law operates in similar situations. Such a discrepancy could, using the words of Richard Steinberg’s In the Shadow of Law or Power?, “engender disorder;” it does so by failing to attain one of the eight fundamental principles of legality prescribed in Lon Fuller’s theory of legal morality (the eight desiderata); that is, the congruence between the rules and the official actions of those applying such rules. I, thus, argue that the ongoing campus activism escalating worldwide is a symptom of the legality issue caused by a debunked functional discrepancy of international law.

In his classical book entitled “The Morality of Law,” American natural law theorist Lon Fuller established “eight criteria for legality” — criteria he believed were required for any body of rules to qualify as a “legal system.” Fuller argued that for any legal system to be truly legitimate its rules must achieve such eight principles of legality. They must be:

  1. general
  2. promulgated
  3. prospective, not retroactive
  4. clear
  5. not contradictory
  6. not impossible
  7. constant over time; i.e. not subject to frequent alterations
  8. congruent with respect to what legal norms require and the actions of the officials operating under such norms

In this article, I focus on the last criterion: the congruence between international legal norms and the actions of the leaders in charge of applying such norms in the context of Israel’s atrocities in Gaza. In other words, are the current international institutions, in their reaction to Israel’s atrocities in Gaza, acting in alignment with Fuller’s principle No. 8; in congruence with the rules of international law? Based on an analysis of examples from two international institutions: the Office of the Prosecutor (OTP) of the ICC, and the UN Security Council (SC), I have come to the conclusion that the answer is no.

On 3 March 2021, the Prosecutor of the ICC announced the opening of the investigation into the Situation in the State of Palestine. The announcement came after the Pre-Trial Chamber found that the Court has jurisdiction over the situation in Palestine including Gaza. Since that moment in 2021 until writing these words, the OTP has never reached a decision in this Situation. Since 7 October 2023, the statements of the Prosecutor have been described as “biased” and contradictory with his actions and his mandate as the ICC Prosecutor. As Triestino Mariniello argued:

While it took the Prosecutor only one year to identify concrete cases in the situation in Ukraine, he has not requested any warrants of arrest or summons in relation to Palestine and Israel in the two and a half years since he was sworn in.

By the same token, in one of his statements after 7 October, the Prosecutor claimed that the “Palestine investigation has always been, and remains, a very important investigation in the ICC;” however the OTP according to the Proposed Programme Funding of 2023 allocated no funds to the Palestine situation in 2022. Additionally, in 2023, according to Mariniello, “Khan allocated the lowest budget … among all active investigations to the Palestine investigation.” Accordingly, it does not seem that such a situation has always been, nor does it remain, a very important one in the OTP. This means that the Prosecutor is actually acting in violation of Art. 54(1)(b) of the Rome Statute which provides that “the prosecutor shall:.. b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses,… .”

Since October 2023, members of the UN Security Council has endeavored on four occasions to adopt a humanitarian ceasefire (or humanitarian pauses): (S/2023/772), (S/2023/773), (S/2023/970), and (S/2024/173); however, each of these resolutions were vetoed by the United States. On 25 March 2024, the SC managed for the first time to adopt a ceasefire resolution (during the month of Ramadan) (S/RES/2728) only when the US abstained. Subsequently, the US government has challenged the effect of the resolution No. 2728 stating that it is a “non-binding” one. On 18 April 2024, Algeria proposed a draft resolution recommending that the GA admit the State of Palestine as a UN member; however, it was again vetoed by the US. While the UN Charter provides in Art. 24(1) that the UNSC is primarily responsible for “the maintenance of international peace and security..,” it has been blatantly used, by the US, to the opposite end. It was used to stop the humanitarian ceasefire; to deliberately let the IDF continue the bloodshed and, as a result, to compromise the primary role of the SC. In the same context, while the SC is the only institution that is able to enforce the ICJ provisional measures, it has refrained from doing so.

This happens whilst the US is leading the UNRWA funding-suspension campaign, with 11 other states, based on Israeli’s “allegations” against its staff. Needless to say that UNRWA is the primary humanitarian agency in Gaza with about 2 million dependents. By the same token, this happens alongside the robust US, and other EU members, military assistance to Israel in a flagrant violation not only of the IHL but also of the US own policies of weapons transfer. Such a discrepancy has led to public resignations of three US State Department officials: Josh Paul, Annelle Sheline, and Hala Rharitt who announced their objection to the current US hypocritical foreign policy.

There are numerous incidents and positions that highlight the clear discrepancy between international rules and the actions of the officials responsible for enforcing them. When we piece together these incidents, statements, and positions, it becomes evident how profoundly they diverge from the established norms, scripts, and rituals of the international legal system.

Lon Fuller’s eight desiderata outline essential principles for a legitimate legal system. He argues that “[a] total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all.” Fuller further explains that “[it] may not be impossible for a man to obey a rule that is disregarded by those charged with its administration, but at some point obedience becomes futile—as futile, in fact, as casting a vote that will never be counted.”

Although Fuller initially discussed his theory within a domestic context, he introduced a concept of inner legal morality that is equally applicable internationally. Obedience to international rules is based on the assumption that the legal system respects the dignity and responsible human agency of its subjects, as Kristen Rundle explored in her PhD dissertation, “Forms Liberate: Reclaiming the Legal Philosophy of Lon L. Fuller” from the University of Toronto. Consequently, following a legal system becomes futile when it operates with such a significant discrepancy and disregards the dignity of its subjects. Fuller states that “[in] situations like these there can be no simple principle by which to test the citizen’s obligation of fidelity to law, any more than there can be such a principle for testing his right to engage in a general revolution.”

When formal channels for justice and accountability become unviable, individuals seek alternative ways to express their feelings and outrage. The student activism that began in US universities and spread worldwide is a testament to this legality issue. Gaza’s genocide and Israel’s impunity will have severe repercussions on the world order. Action must be taken to stop the genocide and bring its perpetrators to justice.

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