By Charunivetha Solai Gnanasekar
Abstract
This article argues that Public International Law is rendered ineffective due to its vague nature which is entrenched in its claims of universality. It critiques how international law’s Eurocentric foundations, rooted in Western moral traditions, marginalise the diverse value systems of non-Western societies like those in the Middle East. The Israel-Hamas conflict highlights the ambiguities around applying international legal concepts to contexts vastly different from the European frameworks that originated such laws. The pursuit of contrived universality through hegemonic contestation between states has resulted in international law becoming either oppressively homogeneous or flexible to the point of vagueness. The article calls for a more inclusive, culturally aware approach to enhancing international law’s legitimacy and effectiveness globally.
Introduction:
Heralding the Peace of Westphalia as the dawn of International Relations is problematic due to the Eurocentric approach it attaches to the subject. The Eurocentric bias extends to International Law which entrenches these Western ideals, rooted in Christian morality, in the global south. However, International Law is often cloaked under the guise of ‘universality’ – the notion that it applies universally represents universal moral principles, and provides universally effective solutions. Consequently, in the historical evolution of law in the non-European world, their values and concerns are marginalised. International Law’s attempt to devise a ‘universal’ has resulted in a poor implementation of the most elementary laws of war, i.e., Jus ad Bellum and Jus in Bello.
The Middle East serves as a poignant region to understand the negative implications of the universalisation of European ideals. The region, now mired in bloodshed and rooted in morals that are seemingly contradictory to that of the West, is infamous for its breaches of International Law. This intersection allows us to understand the effectiveness of International Law in the non-European world which operates on a fundamentally different set of moral and ethical precepts. By imposing a ‘universal’ framework derived from Western traditions, International Law fails to resonate with and address the unique contexts and value systems of non-Western societies, undermining its legitimacy and efficacy in these regions.
The Eurocentrism of International Law:
The Westphalian origins of International Law have been challenged by recent scholars who claim that Westphalia was a “case of ahistorical myth-making to provide the state system with a clear starting point”. Martti Koskenniemi sheds light on this pivotal moment, explaining: “It was then that international law emerged as a law of ‘states’ that could be thought of as ‘legal subjects’ or ‘persons’ distinct from their rulers or elite groups.” While the origins of International Law did not draw much attention during the European colonisations, the new era of freedom and sovereignty ignited a decolonial agenda – an effort to remove colonial traces from previously colonised countries and restructure legal frameworks to better align with the aspirations of newly independent nations.
Third World Approaches to International Law (TWAIL) emerged as a response to the dominance of Western perspectives and values in the field of International Law. TWAIL scholars critique the marginalisation of non-European histories, experiences, and moral frameworks within the European laid framework of International Law. They challenge the assumption that European norms and principles should serve as the universal standard, arguing that this perpetuates the subjugation of the Global South and disregards the diverse ethical systems that have shaped the legal traditions of these regions. While TWAIL has been instrumental in sparking discussions in the academic world, it is yet to produce substantial results. B.S. Chimni discusses this demerit of TWAIL in his paper, ‘Third World Approaches to International Law: A Manifesto’: “The ideological domination of Northern academic institutions, the handful of critical third world international law scholars, the problems of doing research in the poor world, and the fragmentation of international legal studies has, among other things, prevented it (TWAIL) from either advancing a holistic critique of the regressive role of globalising international law or sketching maps of alternative futures.” Further, it is this Eurocentrism that allows for International Law to claim to be universal.
The Universal Claims of International Law:
International Law is premised on the notion of universal values. It claims that International Law is the codification of those morals and ideals which all countries identify with. However, that hardly seems like the case according to critics, who observe that these universal values are an attempt to disseminate Western ideals under the legitimacy of International Law. Martti Koskenniemi, in his seminal work titled ‘International Law and Hegemony: A Reconfiguration’, calls this the hegemonic contestation. He explains, “In political terms, this is visible in the fact that there is no representative of the whole that would not be simultaneously a representative of some particular. ‘Universal values’ or ‘the international community’ can only make themselves known through mediation by a state, an organisation or a political movement.”
Due to the absence of a truly objective ‘representative of the world’, inherent biases exist behind the codification of International Law. He further explains that behind every notion of ‘universal’ proposed by countries, there exists a personal agenda to strengthen that country’s ideology. Therefore, every aspect of international law becomes a contest which aims to limit the powers of other countries while allowing freedom for itself, failing to represent a truly ‘universal’ ideal. The illusion of universality in International Law is a paradoxical combination of extremely restrictive provisions and completely open-ended, non-exhaustive lists of definitions.
The Middle East, comprising of values that differ from the European vision, and experiencing great turmoil due to a lack of adherence to the laws of war, provides a stellar opportunity to examine these claims about International Law.
Humanitarian Law Violations in the Middle East:
The International Bar Association, while condemning the attacks on Israel by Hamas on October 7th, urged Israel to comply with its commitments to International law. The UN Secretary General, Antonio Guturres, while remarking, “It is important to also recognise the attacks by Hamas did not happen in a vacuum. The Palestinian people have been subjected to 56 years of suffocating occupation”, called for an immediate ceasefire and said that International Law was being violated in the Israel-Hamas war.
The Geneva Convention of 1949, which established International Humanitarian Law, is binding on Israel, as well as other non-state armed groups such as Hamas. However, reading International Humanitarian Law here is a complex issue. If the Gaza Strip is considered ‘occupied territory’, Israel would not have the right to self-defence as it would be dealt with as a matter of maintaining order as opposed to an external attack. However, Israel considers Gaza to be independently administered by Hamas (although it does not consider it an independent state). This position, however, is not supported by legal scholars who believe it to be outside the scope of International Law. Regardless, in the eyes of Israel, the counter-attacks are an act of self-defence.
If we proceed with the presumption that Israel is entitled to self-defence, the next question would be whether it is proportional to the attacks. However, ‘proportionality’ is a very loosely defined term. Former legal counsel of the UN, Hans Corell, says, “As I understand it, the situation in Gaza is extremely complex. It has been said that Hamas is using the population in Gaza as human shields and that military personnel and equipment is sometimes based in civilian institutions. If so, the situation is very difficult for a state engaging in self-defence. This means that harming civilians is sometimes unavoidable.”
Gaps in International Law:
The Israel-Hamas conflict vividly illustrates the shortcomings of international humanitarian law when applied to contexts shaped by vastly different cultural, religious and moral value systems than those that gave rise to these legal precepts. As explained earlier in The Universal Claims of International Law, the hegemonic contestation between countries to ensure the best for themselves while reducing the power of their opponents hinders the effectiveness of International Law by constructing either extremely narrow or broad provisions. This contributes to vagueness in evaluating the legal provisions applicable to the Israel-Hamas conflict. The European system of values that International Law claims to be universal, not only fails to accommodate the values of the Global South but also fails to be effective in its attempt to do so. The vagueness around defining “proportionality” in armed conflict, and the contested legal status of Gaza itself, exemplify how the European foundations of international law can fail to provide clear guidelines in non-Western contexts mired in long-standing ethnic, territorial and ideological disputes.
Conclusion:
The critique of Eurocentrism in International Law and its failure to truly embody universal values is poignant in the Israel-Hamas conflict. As the world becomes increasingly interconnected and interdependent, the pursuit of truly universal principles and norms in International Law becomes ever more critical. This requires a fundamental shift in the way we approach the development and implementation of these laws, moving away from the hegemonic contestation that has historically dominated the field. The pursuit of universality in international law has resulted in its depiction as either ‘egotistically anarchic or oppressively homogeneous’ as Koskenniemi puts it. Taking a step back from achieving ‘universality’ and attempting to address the diverse moral frameworks of different countries would form the ground on which International Law can be built and developed. The Law derives legitimacy from its people; and in the case of international law, its legitimacy can only be derived from mutual respect by all countries towards it. Therefore, mutual respect between countries and a mutual respect towards international law is a prerequisite for its effective functioning.
About the author
Charunivetha Solai Gnanasekar is a first year undergraduate student at the Jindal Global Law School with a keen interest in International Relations. Her interests in research lie in theoretical international relations and international law.
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