Many liberal pundits argue that the central danger posed by Donald Trump lies in a wave of populism his presidency has unleashed. But an even more pressing danger is the Trump Administration’s disrespect for the rule of law in general and international law in particular.
The latest violation of international norms has been the sudden shift in US policy towards recognizing Israel’s settlements in the Occupied Palestinian Territories, long declared illegal by the vast majority of the international community. Last month, in a 180-degree reversal of US policy, Secretary of State Mike Pompeo declared that “Israeli settlements are no longer illegal”.[1]
He added: “Calling the establishment of civilian settlements inconsistent with international law hasn’t worked. It hasn’t advanced the cause of peace.”
Set aside for the moment the matter of how a politician can make such an uninformed statement and one that fundamentally disregards international law. It is the very presence of 700,000 Jewish settlers in the West Bank and East Jerusalem that makes peace unattainable.
But Pompeo’s statement has much wider import than a resolution of the Israel-Palestine conflict. It opens up the floodgate to a politics of “facts on the ground”. This shift in US policy tramples international law and offers an invitation to other bullying states to act in the same manner. Where might this lead?
Chinese president Xi Jinping could draw verbatim on Pompeo’s justification, declaring:
“Calling the invasion of Tibet inconsistent with international law hasn’t worked. It hasn’t advanced the cause of peace. So let us finish the business of ethnic cleansing of Tibetans, and since we are in that ‘remote’ part of our country, let us finish the ‘re-education’ and mass incarceration of millions of Chinese Uyghur Muslims in the Xinjiang provinces.”[2]
Additionally, China, which has ignored various UN General Assembly resolutions on Tibet, could use Pompeo’s argument to expand its presence in the South China Sea. Since 2010, Beijing has engaged in behavior considered illegal under international maritime law by occupying uninhabited islands, setting up military bases and constructing floating archipelagos to legitimize their sovereign claim over those islands and adjacent sea waters. The international community, including in 2016 the International Court of Arbitration, have repeatedly objected to China’s claims.
Although international law has been codified, it has always been customary in nature. In this sense, it is more readily prone to alteration. Many international treaties have become effectively obsolete through custom.
States’ willingness or refusal to conform to certain behaviors can result either in greater codification or in de-codification. If certain countries uniformly, and constantly, behave contrary to acts stipulated in international treaties then, following customary law, written law is superseded by the new “common” behavior.
Regrettably, in the Trump era we are witnessing the emergence of new customary law – one in direct opposition to codified international law. Rather it is premised on recognizing sovereignty claims based on facts on the ground – on the principle of might is right.
Since Trump’s inauguration, the US has followed, rather than resisted, the lines pushed by the right-wing coalitions in power in Israel under Prime Minister Benjamin Netanyahu. Two years ago it authorized the move of the US Embassy to East Jerusalem and now it deems the Israeli settlements in the West Bank legal. In both instances, justification was not rooted in international law but in the current state of affairs. Israel was effective exercising sovereignty or political control over those areas, in total disrespect of international and humanitarian law.
Washington is behaving as if it does not understand that Russia exercises similar control in its own spheres of influence – over Crimea, South Ossetia and Abkhazia. Or that Morocco exercises such control over Western Sahara, and Turkey over northern Syria. China is attempting to extend its reach over the Spratly and Paracel Islands. Accepting and recognizing Israeli claims as legitimate on a purely factual basis, rather than one rooted in international law, is extremely dangerous. It sets a precedent that will prove deeply detrimental to international affairs.
The problem is not just which portion of land or sea is being recognized as belonging to whom, but who is doing the recognizing. Since 1945 the US has assumed the role of guarantor of the international order in two ways. First, by being the architect of the main international institutions and treaties, such as the United Nations; and second, by subjecting itself to the same rules that bind the international community.
Naturally, the willingness of the US to bind its own behavior to international law is strategic in purpose rather than morally altruistic. Historically, international law has always existed in the tense interface between equality among states and power politics. Particularly since the 19th century, its legitimacy and application has relied on adherence by the major powers. Freedom of navigation, for example, became an accepted international principle not because the British empire had the power to impose it but because Britain established it as a rule to which it would also submit itself.
After the Second World War, the US mostly had a vested interest in following international law, even if it could have opted out without repercussions. Its behavior as the hegemonic power set international custom, the source of international law. It provided a role model for competing and aspiring major powers.
Washington mimicked London’s behavior in ensuring freedom of navigation as a cornerstone of international law, allowing for a stable and peaceful coexistence between both countries and, eventually, an ordered transition from a dying superpower to its heir.
However, when Britain and France disregarded the mandate system they had devised – in Syria, Palestine and Cameroon – competing powers such as Germany, Japan and Italy used that as a precedent for advancing their own interests in Rhineland, Manchuria and Ethiopia. That led to the breakdown of the international system anchored in the Versailles Treaty and subsequent treaties in the 1920s. Ultimately it drove the world towards another major war.
Consequently, the latest example of Israel flagrantly disregarding international rules that govern peace and sovereignty will be interpreted as legitimate behavior by powers such as Russia, China and India.
The invasion of Iraq was a fundamental violation of international law. Russia clearly recognized that when it invaded Georgia in 2008 and Ukraine in 2014. Obama’s use of drone strikes in Pakistan, Yemen and other countries has been copied by Turkey to strike PKK bases in Syria and Iraq. Trump’s latest violations will only embolden other expansionist powers, such as China.
Being the world’s superpower does not only require hegemonic force but hegemonic prudence too. Leadership involves followers and that in turn requires exemplary behavior. Self-limitation can serve self-interest if it drives future competitors to limit themselves as well.
In the 1920s and 1930s, delegitimization of international law did not begin with the invasion of Abyssinia or with the Anschluss, but with the paternalistic – racist, even – mandate system of the League of Nations that functioned in the service of European colonialism. Similarly, the origins of the current crumbling of the Middle East’s fragile equilibrium are to be found in the invasion of Iraq rather than the annexation of Crimea.
For decades, Israel has tried to bend the interpretation of international law to its will. During most of that period the international community largely resisted. Even the US would, from time to time, summon Israel to insist on it abiding by basic principles of international law. Granted, it was often done timidly. But on at least two important occasions US presidents unequivocally denounced the presence and growth of Israeli settlements in the Occupied Palestinian Territories: Obama at the end of his second term, and Bush Sr before the Madrid Summit in 1991. It is also often forgotten that the US was the only country that tried to compel Israel to accept a partial return of Palestinian refugees after the 1948 war.
But now we face an age when it is Israel that dictates the new normal. And the US seems happy to follow.
One should not forget that Trump’s other allies have already stolen a page from the Israeli playbook of aggressive policies and open disdain for international law. Indian President Modi’s unilateral revocation of Article 370 in the provinces of Jammu and Kashmir last August has already had dramatic consequences for Muslim Kashmiris.[3]
Using the template of Israel’s treatment of the occupied Gaza Strip, the Indian government has barred journalists from travelling in the Jammu and Kashmir regions, inviting instead Europe’s far-right lawmakers on propaganda tours of the region.[4] Recently the Indian Consul-General in New York City even explicitly argued that his government looked to Israel’s settlement policies as a way to replace the civilian population in Kashmir.[5]
In other words, Israel’s open contempt for international law is becoming a model for other states. Under this new paradigm, laws are cherrypicked if they bolster expansionary and aggressive policies of the kind typical of settler colonial regimes and unfettered imperial powers.
Like Israel, Russia, China and India all share the same incentive to assist in the gradual erosion of the status of international law to further their strategic interests.
Trump and his reckless Administration are a danger not only domestically but to the entire world. The paltry protections that still exist in international law and its mission to defend vulnerable populations living under military occupation or under military attack need to be vigorously defended by the international community.
Flagrant disregard of international legal principles has emerged as a key connective tissue in the alliance between the world’s two most arrogant settler colonial powers, the US and Israel. This is no surprise for anyone who has studied Palestinian history. But it should now set off alarm bells for the broader international community, alerting them to the storm clouds gathering on the horizon.
[1] See, e.g. the news as reported by the BBC: https://www.bbc.com/news/world-middle-east-50468025.
[2] On this, see the Xinjiang Papers, at: https://www.nytimes.com/interactive/2019/11/16/world/asia/china-xinjiang-documents.html
[3] See for ex. https://publicseminar.org/essays/kashmirs-silent-suffering/
[4] See for ex. www.nytimes.com/2019/10/29/world/asia/india-kashmir-european.html?searchResultPosition=1
[5] See www.middleeasteye.net/news/india-consul-general-united-states-calls-israeli-solution-kashmir
ZNetwork is funded solely through the generosity of its readers.
Donate