Rethinking International Law After Gaza Symposium: Palestine at the ICJ – International Law v The “Rules Based Order”

[George Bisharat is an Emeritus Professor at the University of California College of the Law, San Francisco, and writes frequently on law and politics in the Middle East for both academic and general audiences. He is currently leading an international comparative research project examining the role of private violence in settler colonial societies.]

Three cases related to Palestine have been before the International Court of Justice in The Hague in the last two years. The first of these cases involved the United Nations General Assembly’s 2022 request for an advisory opinion regarding Israel’s long term military occupation of Palestinian territory. The second involved South Africa’s charge in late December 2023 that Israel was committing genocide in Gaza through its response to the 7 October 2023 Hamas-led attack on Israel. In the third case, filed in March 2024, Nicaragua charged Germany with complicity in Israel’s alleged genocide in Gaza by dint of its arms transfers to the Israeli military. Together these cases constitute a litmus test regarding the direction the global community may take in the years ahead. Will it support the primacy and universality of international law? Or instead will it follow the “rules based international order” championed mainly by the United States, and followed by a number of its closest allies?  

As John Dugard has pointed out, these are not the same thing, even though they at times sound like it. International law is the set of rules that have evolved to govern relations between nations that are enforced by defined structures, such as the International Court of Justice. The rules-based international order (RBO), in contrast, is a set of principles that US officials have been invoking with increasing frequency since the 1991 demise of the Soviet Union. They include democracy, the rule of law, free trade and markets, collective security, multilateralism, and protection of individual rights. And this RBO is typically presented by its proponents as one pole in a grand global struggle between democracy led by the US on the one hand, and autocracy, on the other.

While RBO principles in the abstract all sound positive, they are, unlike international law, ill-defined and vague, and therefore flexible to interpretation. Nor is it explicit who, exactly, has the right to define the rules of this rules-based order nor how they are generated. As a matter of practice, it is the United States that typically invokes these rules against its chief geostrategic rivals, Russia and China. So in a May 2022 NYT op-ed, President Biden said of Russia’s invasion of Ukraine “And it could mark the end of the rules-based international order, and open the door to aggression elsewhere, with catastrophic consequences the world over.” 

To be clear: President Biden could have invoked international law rather than the RBO, because Russia’s invasion of the sovereign state of Ukraine certainly violates that law and the Charter of the United Nations, which only permits war in defense from imminent attack or when explicitly authorized by the UN Security Council. Why did he not do so? What function does the rules-based order play in American diplomacy? It is worth noting, that in a recent survey rating the compliance of 74 nations with the United Nations Charter going back to 1945, the United States ranked last and Israel second-to-the-last.

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The role of the RBO in U.S. diplomacy is evident in the positions it has taken in regard to the three Palestine-related cases before the International Court of Justice. This is particularly true in the positions argued by State Department lawyers in litigation over the United Nations General Assembly’s request for an advisory opinion on the legal consequences arising from Israel’s more than 57 year occupation of Palestinian Territories. An unprecedented 52 states and three regional organizations joined in hearings in February 2024; Israel, for its part, abstained from oral arguments.

The gist of the U.S. position was that the ICJ shouldn’t order a unilateral end to Israel’s occupation, because this would undermine the land for peace framework established by United Nations Security Council in its resolutions 242 of 1967 and 338 of 1973, and thus weaken the rules-based order. Such a court order would hand Palestinians the land without handing Israel peace, while neglecting Israel’s security interests.

Yet, these supposedly foundational UNSC resolutions were adopted after wars between Israel and the Arab states and make no mention of the Palestinians nor their national rights, referring only to a “just resolution of the refugee issue”. They staked out a political, not legal position, and were arrived at by a political process, that is, negotiations within the Security Council in which Palestinians had no voice. Meanwhile, the US has not seemed in any way offended by treaties between Israel and Egypt in 1979, nor between Israel and Jordan in 1994.  Recently the U.S. fostered the Abraham Accords between Israel and now four Arab countries (the United Arab Emirates, Bahrain, Morocco, and Sudan). All of these awarded Israel peace with Arab states without giving the Palestinians land (the treaty with Egypt, of course, involved Israel’s return of the occupied Sinai Peninsula to Egypt). 

So why does the United States accept peace with no land, but not land with no peace? Wouldn’t a court judgment that clarified the rights of the respective parties support a fair and just resolution in accord with international law? Did U.S. opposition to a court finding that Israel’s occupation of Palestinian authority arises from its acceptance that Israel keep lands in the West Bank that it acquired in violation of the UN Charter’s rule against territorial acquisition by war? Does the U.S. prefer that Palestinians be forced to negotiate while the occupation continues, in other words, at the point of an Israeli gun? 

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On July 19, 2024 the ICJ issued its advisory opinion on the legal status of Israel’s occupation. Among the major findings of the court: Israel’s 57+ year occupation of Palestinian territory, including East Jerusalem, the West Bank, and the Gaza Strip is illegal in its entirety, not just in its discrete practices. The court based its conclusion on two grounds: the occupation amounts to de facto annexation, which violates the UN Charter’s prohibition against the acquisition of territory by war; and, in doing so, it denies the Palestinian people their right of national self-determination. Accordingly the occupation must be brought to an end as soon as possible. The court also found that Israel’s occupation violates Article 3 of the Convention on the Elimination of Racial Discrimination, which bars racial segregation and apartheid.

In December 2023, South Africa lodged a complaint against Israel at the ICJ claiming that in its onslaught against the Gaza Strip, Israel was violating its obligations under the UN Convention on the Prevention and Punishment of the Crime of Genocide. Soon thereafter, South Africa requested that the court “indicate provisional measures,” in other words, to take emergency action to preserve Palestinian rights during the pendency of the case. Hearings in the case began in January in which both sides presented evidence and argument on the request for provisional measures. 

The  court found plausible evidence that genocide was occurring, and ordered that Israel do everything in its power to prevent genocidal acts and to facilitate the entry of aid and its distribution within Gaza, and to report back on its efforts within a month. That month passed, and Israel submitted a report on its compliance with the measures that has not been made public. Meanwhile, the situation on ground worsened, prompting South Africa to go back to the ICJ in early March to seek additional provisional measures. The ICJ accepted that invitation and, on 28 March 2024, found that the deepening threat of famine was a changed condition justifying modification of its earlier orders. While affirming those earlier orders, the court sharpened and made more specific its demand that Israel cooperate in the provision of humanitarian aid. 

When the situation on the ground was worsening still, and Israel was threatening to invade Rafah, where more than a million Palestinians had taken refuge, South Africa went back to the court yet again seeking more provisional measures. This time, on 24 May 2024, the court ordered that Israel halt its military operations against Rafah – an order which Israel simply ignored. The court has set 28 October  of this year for the submission of South Africa’s written memorial, and 28 July  2025 for Israel’s response. While the US has assumed no formal role in the case, Secretary of State Antony Blinken has dismissed it as “meritless” and a distraction from negotiations toward a Gaza ceasefire.

The third case, Nicaragua v. Germany, was filed March 1, more than a month after the ICJ had ordered provisional measures in South Africa v. Israel, and after Israel had submitted its report on compliance. Nicaragua charged Germany with violating its duties under Genocide Convention and other provisions of international humanitarian law, such as the Fourth Geneva Conventions, in its provision of arms aid to Israel, cutting off aid to United Nations Relief and Works Agency (the main conduit for aid to Palestinian refugees worldwide) despite being on notice by ICJ’s decision in South Africa v. Israel that there was plausible case for genocide.

So far the court has only made one interim ruling in the case, declining Nicaragua’s application for provisional measures that would have included ordering an immediate halt to Germany’s arms shipments to Israel. This case reflects desperation by Nicaragua to do something, anything, to halt the continuing wholesale slaughter of Palestinians and the complete destruction of the conditions for life in the Gaza Strip.

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The three cases leave us with very serious questions:  Will the primacy and universality of international law prevail? Can international law and the architecture of the post-WWII international system effectively halt a genocide in action? Will we continue to tolerate a decades long “occupation” that is palpably not temporary, and that has evolved into a mechanism for racial oppression and apartheid? Or will the international community yield to the flexible, “heads-I-win, tails-you-lose” construct of the rules-based international order, where it is heads, the U.S. and its small clutch of global partners win, or tails, where opponents of the U.S. lose? And, as John Reynolds has asked, do symbolic spectacles that are not accompanied by concrete actions function to appease protesters, both states and members of civil society, and siphon off energy from other actions that might ultimately have greater effect on the ground?

Encouragingly, the United Nations General Assembly, by a vote of 124 in favor, 14 against, with 43 abstaining, has endorsed the ICJ advisory opinion, including its call on individual states to take actions to end Israel’s illegal occupation. Yet to date, only three states, Colombia, Namibia, and Türkiye have taken concrete actions that might impact the situation in Gaza on the ground. Namibia has recently held up an arms shipment to Israel passing through its port. Colombia has suspended coal exports to Israel, while Türkiye has imposed import and export bans on Israel.

Meanwhile: South Africa maintains normal trade and diplomatic relations with Israel, despite its leadership of the ICJ genocide case. Brazil also has maintained its fossil fuel shipments to Israel despite the government’s criticisms of Israel’s Gaza genocide. Therefore: do the rhetoric and symbolic gestures actually challenge the status quo of violence and oppression? Or do they, in fact and in effect if not intention, support the status quo of violence and oppression? Will the Global South, or “the rest” (of “the West and the rest”), stand up concretely for one of its own, or simply continue, literally, to carry on business as usual beneath a façade of performative rhetoric and ineffectual diplomatic gestures? And if the latter, is it fear of repercussions — for example, sanctions from the U.S — or simply naked self-interest that negates effective action?

International law is legitimate insofar as it is fairly and universally applied. When it is applied selectively, unfairly, and cynically, it is merely an elevated form of propaganda. The credibility of the post-WWII system is being stretched to the limits, at a moment when we as a species face existential danger in the form of climate change and are most in need of international cooperation and peaceful means of resolving conflict. The invitation to substitute an amorphous but politicized rules-based international order in place of the relative clarity of international law — from a serial violator of the United Nations Charter, no less — is one we should firmly reject.