I want to believe in international law. But as I’ve said in many posts over the last year, I think there is something deeply wrong with what many scholars say public international law tells us about the war in Gaza. The way I’ve expressed this is to say that I am not an expert in the relevant areas of public international law, and so I won’t claim that the experts are wrong. But if the law is what they say it is, then I, as a citizen of the world and a human being able to make ordinary moral judgments, am very comfortable asserting that the law is a moral outrage and something that everyone should be striving to change instead of to wield as a cudgel.

One response I’ve gotten to this idea speaks in the register of “more in sorrow than in anger.” I’m sorry, but the law is what it is, and though we might wish it were otherwise, every state and every person simply has to respect the law as it is. The ICC prosecutor has obtained an arrest warrant for senior Israeli officials leading a defensive war against a death cult bent on the annihilation of their state but has not sought a warrant for the arrest of Bashar al-Assad, the now-former dictator of the state right next door, whose government killed hundreds of thousands of its own citizens and deployed chemical weapons against them. If I say that that is absurd, some smartypants will say, “You see, Syria is not a party to the Rome Statute, and therefore the ICC has no jurisdiction. Sorry.” What would I like to say to such a person after I finish pulling my hair out? I would like to say, “Look, Israel also is not a party, and while you say that Palestine is a party, that’s so only because of a multi-decade effort to fiddle with the definition of ‘state’ in order to make it so that Palestine could become a party precisely in order to put Israeli officials in the dock.” So don’t tell me that the law is what it is. You, the right-thinking expert in public international law, have made it so.

Another example. In the South Africa v. Israel case in the ICJ, Israel is faced with an accusation of genocide in Gaza. An ordinary person might look at the reasons Israel went to war in Gaza, the estimates of deaths of combatants and non-combatants there, Hamas’s cynical strategy of fighting from within Palestinian civilian areas precisely in order to ensure the civilian casualties that gain the world’s sympathy, and Israel’s conspicuous failure to kill large numbers of Palestinians either in Israel, where there are millions of Palestinian citizens, or in the West Bank and say that it is absurd to think that Israel has the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” which is what the crime of genocide requires. Now the foreign ministry of Ireland has announced plans to intervene in the South Africa case to ask the court “to broaden its interpretation of what constitutes the commission of genocide by a State.” Ireland, a neutral state that faces no threats to its existence and that was last invaded, as far as I know, by a few Frenchmen at the end of the eighteenth century (of course, before Ireland was a state of its own) is “concerned that a very narrow interpretation of what constitutes genocide leads to a culture of impunity in which the protection of civilians is minimised.” So don’t tell me that the law is what it is and everyone needs to accept it. States and scholars are actively pushing the law towards an immoral result they want and think morally or politically right. It doesn’t have to be that way.