All Wars Matter? On a Different Way for International Lawyers to Engage with Armed Conflicts

[Alessandra Spadaro works as Assistant Professor in Public International Law at Utrecht University. She is conducting a three-year project titled “Business in and for war: the role and limits of international humanitarian law”, which is funded by the Dutch Research Council.]

In a recent post on this blog, my colleague Jérôme de Hemptinne calls on (Western) international lawyers to engage with “invisible” armed conflicts waging in the Global South, such as in certain regions of Africa, Asia, and Latin America. He argues that these wars are often “overlooked” in favor of the “privileged conflicts” in Ukraine and Gaza. I do not disagree with Jérôme’s appeal to reject a hierarchy of suffering between victims of different armed conflicts, nor with his efforts to point out the colonial undertones of biases that shape how certain regions of the world are imagined, and thus how the wars waging there are (not) studied, by scholars in the Global North. This therefore is not so much a response to Jérôme, as much as it is an effort to think along with him, picking up on some of his arguments and reflecting on them further. Ultimately, I aim to show that taking up Jérôme’s invitation not to overlook certain conflicts requires a different and principled approach to the mainstream way international (humanitarian) law experts deal with armed conflicts. 

The Focus on Ukraine and Gaza

Undeniably, the massive military operations in Ukraine and Gaza have attracted much attention from Western media and scholars alike. According to Jérôme, the focus on these two situations is not necessarily misplaced. Nevertheless, the underlying suggestion is that all wars matter. It is worth unpacking this premise, which seemingly conceals inequality instead of addressing it.   

Concerning Gaza, it must be noted that the attention it has been receiving since late 2023 is due to the spectacular form and intensity of the violence that Palestinians are suffering at the hands of Israel. While such heightened attention is justified and indeed essential, the Gazafication and ever-creeping annexation of the West Bank are largely missing from contemporary academic discourse. The current focus of Western international lawyers seems to be on post-7 October Gaza, rather than on Palestine as a whole. The magnitude of the structural, every-day, quiet violence to which Palestinians continue being subjected to, within and beyond the territories occupied since 1967, requires much more engagement (and outcry) than it has received. Academics are not the only ones whose focus is pulled towards spectacular forms of violence over structural ones. This tendency emerges, for example, from discussions about suspending the EU-Israel Association Agreement, which were placed on the agenda only in the face of growing (academic) consensus that Israel is committing a genocide in Gaza. Article 2 of the Agreement requires that both parties respect “human rights and democratic principles”. Questioning compliance by Israel with this provision solely in the wake of genocide allegations results in the trivialization, if not normalization and legitimization, of all the other serious and well-documented violations of international (human rights) law that Israel has notoriously been committing at the expense of Palestinians for decades. 

The focus on Ukraine seems to be marked by a healthy dose of self-interest for Europe’s stability and security on the part of Western scholars. This has clearly tribal connotations, mirrored in the warm reception of (white, European, Christian) Ukrainian war victims in what, for other (racialized) refugees, remains impervious Fortress Europe. Conversely, across the decolonizing world, in activist circles, among civil society, and even for progressive international lawyers, Palestine is not just a place and not just a conflict. Rather, Palestine is a metaphor of the colonial in a supposedly postcolonial present – “Palestine is everywhere”. 

In this sense, lending attention to Palestine is not antithetical to engagement with other conflicts in the Global South, but should rather be seen as integral to and even indispensable for a principled, decolonial engagement with other conflicts, particularly when colonial dynamics and legacies are at play. Additionally, while academics might decide not to study “overlooked” conflicts for the reasons outlined by Jérôme, they are not actively prevented from doing so either. In contrast, critical academic engagement with Palestine is oftentimes discouraged and comes at a high cost. In academic circles, the “Palestine exception” has led to censorship, intimidation and even dismissals. This makes it all the more urgent for critical voices in academia to continue engaging with Palestine from different disciplinary perspectives, including international law. 

While both situations have received ample attention, the treatment of Palestine and Ukraine has also been qualitatively different. For instance, as highlighted by Ntina Tzouvala, the European Society of International Law, the Australian and New Zealand Society of International Law, and the American Journal of International Law have not treated the two situations equally: only the invasion of Ukraine deserved public statements of condemnation and dedicated volumes and panels. This has happened in Western media as much as academia. In his latest book, Mohamed El-Kurd writes (at 65): 

Your conclusion as a reader of the [New York] Times is as follows: Ukrainians go to war in the concrete jungle because they, unlike Palestinians, “have fewer and fewer options when it comes to where they locate their forces.” Ukraine is “defending itself against a Russian army that has vastly more firepower.” But “Hamas’s tactics [in the most densely populated place on earth] explain why Israel has been forced to strike so much civilian infrastructure, kill so many Palestinians and detain so many civilians.” Resistance in the Western mind, is a mutating concept. While Ukrainian resistance is glorified for its guerrilla warfare tactics, Palestinian resistance—termed “terrorism”—is puzzling, perverted, and pathological.

I trust that I am not the only reader of the international law blogosphere who can think of at least one US-based blog whose title can be swapped for that of the Times without altering the veracity of this passage. Similarly, it has not gone unnoticed that the legal arguments advanced by certain commentators to justify Israel’s latest attack against Iran are the same they rejected in the face of Russia’s invasion of Ukraine. Apparently, enemies commit acts of aggression (and war crimes) but allies act in self-defence (and respect jus in bello). The law is applied to the former but creatively interpreted for the latter. 

International lawyers have of course taken note of such double standards, even turning them into objects of study. They appear to reflect the same “lingering legacy of colonial hierarchies” which according to Jérôme result in the invisibility of certain wars. Importantly, El-Kurd suggests that the disparate treatment of Ukraine and Palestine is not just a matter of racism, but rather of the West’s strategic interest in protecting “the empire’s capitalistic and imperialistic endeavors” (at 65). Even “privileged” conflicts are not equal. 

The Need for Context and a Different Approach to the Study of Armed Conflicts 

In his post, Jérôme presents several potential explanations for the lack of academic engagement with certain armed conflicts. I will focus on two of them, arguing that, instead of being considered as barriers to the study of “overlooked” conflicts, these should be used as guiding principles by international lawyers who wish to escape, and not reproduce, the very biases that make certain wars invisible as objects of academic study. 

First, according to Jérôme, international lawyers might overlook conflicts that are “seen as presenting fewer novel or complex legal challenges, and thus appear less compelling to scholars seeking conceptual innovation or broader public resonance”. It is debatable whether any conflict does in fact present fewer legal challenges than others. But, even if this were the case, rather than as an explanation, this should be taken as a warning against taking a utilitarian approach to academic engagement. No armed conflict should be studied for the sake of the stimulating intellectual challenges it presents and the opportunities for the spotlight (or societal impact) it provides. Wars should not be reduced to dry case studies and publication opportunities, just like their victims should not be reduced to mere numbers, to “innocent” civilians, or to women-and-children. 

This point relates to another potential explanation offered by Jérôme for the invisibility of conflicts in the Global South in the eyes of certain international lawyers. He writes that these wars “often unfold within deeply complex cultural, social and political contexts that remain largely unfamiliar to Western audiences, rendering them inherently more difficult to apprehend and, consequently, easier to overlook.” I do not doubt that unfamiliarity plays such a role. But this too can be turned into a call for the fundamental need to become familiar with the historical, political, economic, cultural (etc.) context of a place before jumping into legal analyses. Would the war victims of the Democratic Republic of Congo really benefit from receiving more attention from Western international lawyers preoccupied with e.g. contributing to the overall/effective control debate, classifying the conflict as international or non-international, or upping the impact factor of their publications, all the while being unable to place the country on the map and mention how many people and ethnicities live there, or being oblivious to the global and local politico-economic processes that drive and fuel the conflict? I think not. 

Unfamiliarity with the context in which a conflict unfolds can be transformed into a chance for international lawyers to expand their field of vision. This can certainly be done through recourse to non-legal literature and other materials. A more radical, and arguably a more just, approach would entail centering the voices of those familiar with the context – who might otherwise be excluded from Global North academic circles, classrooms, conference circuits, and publications. To be clear, the fact that Western international lawyers are not writing about certain conflicts does not necessarily make them forgotten or understudied. Such an approach would importantly entail foregrounding the lived experiences of those directly affected by conflicts, as part of what Michelle Burgis-Kasthala has recently termed ‘peopling’ international law.

Doing so may end up revealing much more than which classification of the conflict is the most accurate, including by highlighting the limits of the legal framework. For instance, Palestinians have long insisted that focusing on the occupation framework is not enough, a position which is now gaining more traction. Hani Sayed has pointed out that speaking of the relationship between Israel and the Palestinian population in the 1967 territories as an occupation “contributes to the reproduction of the relations of domination between Israel and the Palestinians” (at 86). According to him, focusing on the illegality of the occupation also does not help make the systemic aspects of Israel’s occupation visible, nor is it a (politically) neutral choice in so far as it reinforces a special governance regime for the “occupied territories” and is premised on a specific vision for the future of Palestinians and the resolution of the conflict (at 84). 

The approach I suggest, particularly when dealing with armed conflicts from the perspective of international humanitarian law (IHL), requires no less than a seismic shift away from mainstream approaches to the study of IHL. Military(-adjacent) lawyers often contribute to IHL scholarly debates – even dominate them – and their voices are prominently platformed because they are “the ones applying IHL during real-life battlefield situations”. Centering operational considerations is what is considered necessary to ensure that the legal analysis is not “divorced from what is happening on the ground”. The perspectives of those at the receiving end of bombs, bullets, or exploding pagers are immaterial for a legal analysis that aims to be realistic. At best, the experiences and losses of war victims are a tragic reality that needs to be accepted as inevitable, without being seriously reckoned with or examined in any detail. 

Many in the IHL field feel the need for a different approach. For example, some recently-launched research projects aim to study cumulative civilian harm and to develop a conceptual framework that is not based solely on compliance with the law. In my personal intellectual trajectory and my current research agenda, doing things differently means striving to understand IHL’s shortcomings in relation to business actors and activities that contribute to and profit from armed conflicts in light of the social and economic relations that shape the law and are reproduced in it. This includes unpacking the co-constitutive relationship between race-making and profit-making and its impact on international law, including on its content, reach, and interpretation. Sometimes, taking a different approach entails altogether decentering international law – and particularly IHL and its agnosticism towards the very existence of armed conflicts.

Conclusion

In sum, I suggest that the prominent presence of certain conflicts in academic international law discussions in the Global North should be carefully scrutinized to unearth double standards even among conflicts in the spotlight. At the same time, what might be perceived as obstacles to the study of overlooked conflicts should be turned into opportunities to approach them in a principled manner – or, to put it more lyrically, “from falling, a dance step”. Arguments suggesting, for instance, that Israel has been acting in full compliance with IHL in Gaza or that it is not possible for or up to external commentators to assess whether this is actually the case might then be relegated to the margins of academic discourse. I can imagine colleagues primarily concerned with battlefield realities protesting that this would render IHL scholarship useless. The better question perhaps is: to whom should scholarship be useful? I hope that as fellow academics ponder this question, they will be inspired to find a renewed sense of purpose to the study of all armed conflicts.