Breaking the Consensus of Wrongdoing Among States At War: The Judicialization of the Ukraine and Gaza Wars

[Eric Alter is the Dean of the Anwar Gargash Diplomatic Academy in Abu Dhabi and Professor of International Law and Diplomacy. A former United Nations civil servant, he is also an affiliate Professor at the Paris School of International Affairs (PSIA), Sciences Po in Paris.]

The present period is one of extraordinary disruption in international affairs, turmoil in domestic politics, especially in the Western world, and disorientation in United States foreign policy. While the United States no longer insists that international relations be subject to a regime based on public international law, other States are preparing for increased strategic flexibility according to their national interests to the extent that over the last two decades, the use of force in Iraq, Ukraine, and Palestine has shown contempt for the international legal framework.

While no system, however authoritarian, can rule by only force, major powers are increasingly uncomfortable with the legal restrictions the UN Charter and other international legal frameworks impose on their freedom of action. None of the restraints set by the post-World War II system seems sufficient: not those in the UN Charter, in the international human rights legal framework, or even under the Genocide Convention. There has been a slow but constant erosion of international law.

Nonetheless, in the last two years, there have been efforts to subject Russia’s war in Ukraine and Israel’s war in Gaza to the remit of international law. This judicialization has spread under the false but oft-repeated promise of international law delivering justice. Pushing this effort to extremes, however, can create legitimacy problems by substituting the decision of judges for that of governments.

The enforcement of international law requires the consent of States, and it works best when State executives and legislatures uphold legal norms. In shifting the power away from executives and legislatures around the world, judicialization could ultimately contribute to a backlash against international regimes. That would undermine the United States’ and other like-minded States’ claims of defending the liberal international order and the international legal system that depends primarily on individual state self-enforcement for its efficacy.

It would be a poor strategy for States, including the United States, to repudiate the concept, much less the usefulness, of international law. Through a renewed pursuit of legitimacy and justice, it is hoped that international law is no more the marginal enterprise it once was.

Supplanting Power Politics

The idea that courts and tribunals might supplant politics and power is a relatively recent development. It gained prominence in 1945, alongside the notion that disputes could be settled by recourse to arbitration or judicial settlement. It regained momentum after the Cold War. What was missing internationally after World War II was, according to the international lawyer Sir Hersch Lauterpacht, an equivalent to the “community of national tradition” epitomizing national solidarity and the higher national interest. In the case of a clear misuse of judicial discretion, internal political checks and remedies could always be found. It is still possible to express some degree of skepticism about the way courts and tribunals are serving the overall objective of justice. Since the international legal system is based on law, not justice, it is illusory to expect international law alone to deliver justice and fairness.

This raises a paradox, however, as one clear way for the international law system to respond to the urgent issues of the current era is precisely through the emergence of an international judicial system, often perceived as a cornerstone in the process of building a global system of governance.

In the case of Ukraine, States have used the UN Security Council’s impasse over the conflict to pursue various legal avenues. A regional organization,  the Council of Europe, is now helping to establish a special tribunal for the crime of aggression to prosecute the Russian leadership. To limit precedents for future ad hoc aggression tribunals being established for other permanent members of the UN Security Council, the model under study is a hybrid format under Ukrainian law with the support of international partners.

The same phenomenon is happening with the situation in Palestine. Specifically, States from the Global South, such as South Africa and Nicaragua, are actively pursuing legal avenues by claiming at the ICJ that Israel’s military assault on Gaza may plausibly be characterized as genocide, or that Germany should suspend immediately its military assistance to Israel, including export of military equipment and war weapons. These are examples of public interest litigation, by which courts and tribunals are now expected to accommodate disputes of a broader scope, nature, and substance at the international level. This obviously extends to the last ICJ Advisory Opinion of 19 July 2024 on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian Territory.

Law Between Power and Justice

International litigation in the public interest, and the accompanying publicity, is likely to endure. Even if some States in the Global South will likely remain non-committal when confronted with violations of central norms of the international legal system, participation in judicial proceedings, whether contentious or advisory, will eventually grow. They will include other obligations towards the international community beyond preventing or prosecuting genocide, such as preventing or prosecuting torture, slavery, or racial discrimination.

The continued legitimacy of international law in a multipolar world demands greater plurality. In January 2024, the Group of 77 developing States, including China, gathered in Uganda to advocate for reform of the global governance system, which they claimed must better mirror the realities of today’s world. Addressing the summit, UN Secretary-General António Guterres remarked that the current international system is “out of date, out of time, and out of step, reflecting a bygone age when many of your countries were colonized.”

While these calls for reform are currently directed at norms that originated in the West, tensions and contestation within the Global South will also transpire. The rise of regional groupings, such as the BRICS (Brazil, Russia, India, China, South Africa, Iran, Egypt, Ethiopia, and the United Arab Emirates) or other intergovernmental organizations, geopolitical blocs, and global social movements, will not automatically lead to progressive or regressive international law. It might, however, help build counter-hegemonic possibilities in law, even at the risk of antagonizing the United States due to the tendency of large developing States to adopt nonaligned stances and to use various courts and tribunals to address complexity and discontent in international law.

Judicial bodies themselves are the product of political processes with longstanding foundations, and they operate within a flexible margin of political interests. For instance, international criminal tribunals, especially in wartime, must meet the high evidentiary standards of a criminal trial. Factors such as who gets prosecuted or not, and what charges are lodged or not, are influenced by politics and predetermined expectations.

That courts can still make a difference is indisputable. However, a word of caution about the role of the law between power and justice may be necessary. The primary purpose of judicial institutions has always been, and still is, to decide disputes between States with their consent and, simultaneously, to develop the law and the principle of the international rule of law. The recent turn to public interest litigation as a forum of protest, and to courts as socially conscious actors able to offer new narratives or alternatives to the unlimited exercise of power, may lead to an unmanageable proliferation of disputes.

Moreover, within the existing international legal framework, it is difficult to recognize the possibility of an end to crime and other wrongs, especially through the ICC. The ICC has failed to secure sufficient convictions and has been heavily criticized for focusing too much on Africa. Expanding cooperation and collaboration of non-States Parties with the Court is noteworthy, but it is unrealistic to turn to the ICC as the principal body entrusted to solve the gravest dilemmas of international politics.

The ICC continues to be dogged by claims of prosecution selectivity and overall limited perceived legitimacy. If selectivity is unavoidable, it is both conspicuous and sometimes indefensible. It is difficult to avoid protests of double standards when a State helps collect evidence relating to the Russia-Ukraine war but is unwilling to do so with the Israel-Hamas war.

Adverse legal rulings, which could undermine a state’s legitimacy if ignored, may lead States to disengage from courts and reject international law and institutions.

Some Proposals

International courts with limited jurisdiction and enforceability should not be expected to address all violations of international law. The international community should endeavor to reassert some control through a system, complementary to the ICJ, involving the principal organs of the UN system and containing the following three propositions.

First, it would be advisable to uphold the UN Security Council’s responsibility in ensuring accountability when alleged international law violations occur, be it in the context of an armed conflict or when confronted with widespread human rights abuses.

The Security Council could pass a resolution obliging the Secretary-General to establish a centralized, permanent fact-finding Unit on Serious Violations of International Law (USVIL), whose tasks would be twofold. Initially, it would make factual determinations about serious international law violations, preferably at the request and assistance of UN Member States on the territory where those violations occurred. It would then recommend further legal action in the common interest where there is plausible evidence that war crimes, crimes against humanity, and genocide have been committed.

The creation of a permanent standing body, such as the USVIL, would have several advantages. First, it would not request an amendment to the UN Charter and would preserve the central role of the Security Council. Second, it would not have to rely on moral standing or intentions of individual States, which are sometimes more interested in the process than in the outcome of a situation. Finally, it would avoid turning systematically to the ICJ which, as the main judicial organ of the UN, is not equipped to handle the world’s largest crises and an increasing number of disputes based on the right of States to act on behalf of the international community in the defense of common values.

Second, when the international community is faced with specific crimes for which there is no international adjudicatory mechanism, such as for the crime of aggression in Ukraine over which the ICC lacks jurisdiction, or when one of the permanent members of the Security Council is a party to the conflict (again relevant to Ukraine), individual states should not be responsible for advocating the creation of a custom-made international tribunal.

Following the model of the Extraordinary Chambers in the Courts of Cambodia or the Special Court for Sierra Leone and acting under the “Uniting for Peace” system established by General Assembly Resolution 377 A (v) (1950), the General Assembly could recommend the creation of an ad hoc international tribunal to exercise jurisdiction over aggression, which is already recognized in customary international law. The alternative would be a tribunal created by treaty, provided it could gather a significant number of States to support it for reasons of legitimacy.

Third, as conflicts and tensions continue worldwide, there is a persistent call for accountability mechanisms and processes in fighting impunity. In this respect, there is a need to fill a gap in the treaty framework and to encourage States to open formal negotiations on the critically important Draft Articles on the Prevention and Punishment of Crimes Against Humanity in the October 2024 session of the Sixth Committee at the UN General Assembly. Crimes against humanity are acts of murder, rape, torture, apartheid, deportations, persecution, and other offences committed as part of a widespread or systematic attack against a civilian population with knowledge of the attack. These crimes can be committed at any time and not only in situations of internal or international armed conflict.

These three propositions would help address many catastrophic situations that amount to a true crisis of humanity, in the words of Secretary-General Guterres. For States that equally share the consensus of wrongdoing when breaching international law, and for which law alone cannot replace politics to ensure peace and justice, reasserting some level of political judgement and control through institutionalization while still being able to delegate adjudication and, when necessary, punishment could be the only acceptable pathway.