International Law in Global Conflicts Today
As many of us absorb the horrific details of conflicts and human rights atrocities occurring globally, in Gaza and South Sudan to name just two, we instinctively wonder when we can expect an end to warfare. If warring states cannot reach a resolution, when and how can those well-known and apparently globally powerful peace-keeping institutions step in to end the violence?
This article explores the contradictions inherent in an apparently globally powerful codified international law system in the face of significant reliance on international customary law. Is codified international law capable of meaningfully enforcing a global rule of law and if not, what new customs and norms between nations might emerge instead?
Customary Law vs Codified Law: The difficulty of applying an International Written Law
It is generally held that there are four main sources of international law under Article 38(1) of the Statute of the International Court of Justice: treaties, custom, general principles of law, and judicial decisions and the ideas of publicists on international law. Although codified International law sets explicitly the terms of a global legal order that aims to maintain peace and encourage cooperation between states, no law regarding international relations is more powerful than others on account of mere recognition in global statute; a key part of peace keeping involves respecting the sovereignty of states, and in this regard, localised and accepted practices between states, i.e. international customary law, frequently overrides codified international rules.
Customary law emerges out of both state practices and opinio juris (the state’s subjective belief that the practice is required as a matter of law). More specifically, customary laws may emerge out of regular and decisive acts of a state or states that express its or their political, organisational, and social preferences, and especially refers to the decisions expressed in its judicial system (court-rulings), and military and diplomatic materials (state official speeches, diplomatic correspondence, military reports and manuals).
Importantly, any state signed to an international convention or treaty may not, within its domestic legal system, consider itself obliged to follow comprehensively the codes of the international convention or treaty. A state holds codified international law as an integrated part of its domestic legal system when it either adopts the provisions of the international code through processes in its domestic judicial system or is taken to have automatically adopted the code upon becoming to a signatory to a convention or treaty — whether the case is the former or latter will depend on that state’s own rules about the process for integrating international laws once signed!
At this juncture, then, it is clear that the normative differences between codified international law and customary international law, and the supremacy of customary law in cases where the two clash, can pose serious problems for the ongoing efficacy of codified international law and its implicit vision of a global rule of law. It is the case that states can simply refuse to abide by codified international rules, even where they have, in writing, agreed to them. And in that scenario, the actions of dissenting states can create, lawfully, new norms that may not reflect in full humanitarian interests or render just, predictable outcomes. Respect for sovereignty for the sake of peace-keeping may also undo the work of new global ‘customs’ that codify international law aims to establish.
New Global Norms: Intersections and Contradictions
The juncture between codified international laws and customary international laws reinforce the obligation of states to abide by a global rule of law. However, the disjuncture between norms in the two legal sources still commonly fails to hold states accountable for committing breaches of international law after they occur, therefore also failing to deter those breaches, and, in numerous cases, arguably even enabling the very violence an international rule of law seeks to sanction in the first place.
Customary Law and codified international law commonly intersect to strengthen the legal propriety of humanitarian interests. In the current war in Gaza, for example, Israel is still bound under Article 42 (which outlines the definition of ‘occupation’) of the Fourth Hague Convention even though it is not a party to the Convention on the grounds of the status of the Article as a globally accepted rule of customary law. If Israel can be considered occupants of Gaza, then they cannot rely on self-defense justifications for armed attacks, and even if not considered an occupying force, would only be entitled to exercise force in Gaza according to the rules of Article 51 of the UN Charter (also considered customary law and which requires the self-defence acts to respond to the actions of militants attributable to the purportedly attacking state, as well as proportionate to the degree of force used by the attacking state).
Even if Israel’s activities in the Gaza Strip do not count as occupation, parts of codified international law can generally be taken as representative of customary law to address key aspects of the conflict. Specifically, Israel would still be obliged to uphold key rights implied in International Humanitarian Law (e.g. the right for a person to be spared if they no longer wish to participate in hostilities, the right not to endure unnecessary suffering, and the right for civilians to be taken as distinct from combatants) and those implied broadly in other evidence of customary law (e.g. refraining from targeting, starving, forcibly ejecting, and denying medical aid to civilians).
Yet despite this degree of clarity on the obligations of Israel in the conflict in Gaza, the International Criminal Court (‘ICC’) will only be able to prosecute Israel for failing its obligations as an occupier if it, like Palestine, is also signed to the Rome Statute (which contains the relevant international law provisions on ‘Crime of aggression’ for the purpose of prosecution in the International Criminal Court). In other words, even where codified and customary law are clear on the responsibilities of states in a conflict, the systems may still fail to impose any meaningful consequences on offender-states. There would be no customary law obliging Israel to face procedures in the ICC.
The fact that states can avoid accountability for heinous crimes so easily can very conceivably establish, and to an extent already have established, a dangerous new precedent whereby destructive and deadly wars are waged without any legal consequences or any repercussions. The outcome of this egregious degree of impunity is therefore not only the obliteration and ravaging of millions of lives and state livelihoods globally well into the 21st century, but also the creation of new, very alarming ‘customs’ or norms of warfare. One need only think of the enormous number of civilian casualties in the war in Afghanistan, and the fact that the war proceeded with almost no impactful objections when the US rationalized its attack as ‘self-defence’ against an ‘imminent’ threat. Military attacks justified brazenly on the basis of merely pre-emptively deterring an enemy, explicitly outlined and advocated for in government documentation (US National Security Strategy 2002), were previously unheard of in the international community and signalled a new higher degree of entitlement to aggression in US foreign policy.
Another seemingly anomalous failure in the public international justice system is what has been called the ‘paralysis of indifference’ in the face of indisputable evidence of genocide and other human rights abuses in Myanmar. Despite the deaths of about 10,000 Rohingya men, women, and children, and the displacement of over 700,000, the Security Council has yet to refer the matter to the ICC — Myanmar is not a party to the Rome Statute and so cannot be tried in the International Criminal Court.
What Can Be Done?
The ongoing devastation and injustice emerging out of global conflicts suggests that the UN or nation-states should begin to consider alternatives or additional procedures for encouraging cooperation instead of violent domination amongst states. Until then, we should perhaps recognise that total reliance on a codified international law that falls back on custom is not sufficient, and in fact has proven to abet, violent global conflicts.
The power of practices of only a small group of nations to establish customary laws that bind whole regions of the global, and even the entire international community (given that silence can be taken as tacit consent), moreover suggests that many countries or regions considered “safe” are at risk of being subjected to new volatile and seriously perilous norms if too complacent in their assertion of contrastingly peaceful and sustainable ones.