late night thoughts on international law

This feels obvious: international humanitarian law has proven almost completely ineffective in preventing what the world has agreed upon as war crimes. It's been equally ineffective at imposing post facto consequences.

The Nuremberg trials were the only effective example, and they're also a bad example, because they're what the laws were invented for.

Now in Gaza and in Ukraine, instead of "international law", Biden defends his policy by referring to a a "rules-based international order".

"What is this creature, the rules-based international order, that Americans have increasingly invoked since the end of the Cold War instead of international law? Is it a harmless synonym for international law, as suggested by European leaders? Or is it something else, a system meant to replace international law which has governed the behaviour of states for over 500 years?" (John Dugard)

Denial of prisoner-of-war status to soldiers detained at Guantanamo Bay following the US invasion of Afghanistan in 2002 is a violation of Article 4 of the Convention Relative to the Treatment of Prisoners of War. Bombing hospitals is prohibited in Article 27 of the Hague Regulations and Article 19 of the First Geneva Convention. Of course hypocrisy, and exceptionalism are not behaviors unique to a RBIO. But the RBIO's amorphous nature facilitates the substitution of international law with the prerogatives of American hegemony.

Steve Randy Waldman suggests abandoning the failed project of international law in favor of "norms". Norms are shared expectations about what constitutes appropriate behavior. Waldman follows Max Weber's definition of the state as the "human community that (successfully) claims the monopoly of the legitimate use of force within a given territory". Waldman points out that there is no coherent international agent that holds a monopoly on legitimate violence as a backstop for the laws and methods intended to secure liberty for citizens. This is true. Waldman then proposes that norms are preferable to laws because instead of appealing to an authority (as under law), norms attempt to capture consensus.

I'm not so sure. First: in the legal system, judges are not intended to be arbitrary authorities; they are supposed to represent what, broadly speaking, "the people" think. Second, even if we do abide by norms, we should probably write those norms down and try to make them better through contestation and careful debate, right? That process sounds pretty legalistic … even if it doesn’t reflect the full force of "law”. Third, in order to communicate effectively, we need shared language. Words to name crimes. Words like "genocide", "war crime", "prisoner of war". And that vocabulary, I think, is only offered by international law. Fourth, there already exists popular consensus, especially outside America, of many norms. At least half of the voting populus in Belgium, France, Germany, Italy, and Sweden support banning arms trade with Israel. The bottleneck doesn't seem to be popular consensus. The problem seems to be that those who "model, enforce, and reinforce" foreign policy aren't representative of their constituents. Fifth: Waldman notes a "strange mix of idealism and careerism" in the project of international law which has resulted in "weaponized sanctimony rather than international peace." This is true. But these laws and principles were also hard-fought legal battles that arrived on the back of massive, massive, global catastrophe..

I don't doubt that perhaps I'm being naive. Perhaps it's time to let go of my attachment to this fantasy "The Law." What a fantasy it is: that if you crafted a good enough argument, the world would change. One must remember that the roots of international law are not in humanitarian interest but in increasing wealth between nations through free economic exchange. I know that at a minimum one must let go of the fantasy that any group of people, anywhere (let alone everyone in the world!) will one day coalesce around some sort of moral consensus.