Whether international law has the capacity to establish the rule of law is a question one may well ask today as the world witnesses crimes against humanity committed in Israel against entire families, including babies, their siblings, parents and grandparents, and as Ukraine has entered a second year of fighting Russia’s invasion of its land, an invasion in clear violation of codified and customary international law.
A look at the history of modern international law may elucidate some of the reasons it seems to be failing. Modern international law started with a group of dedicated internationalists following the first World War. They believed, as did many in the West, that it had been the “war to end all wars,” and they hoped to develop international laws which would ensure that principles of human decency and peace would be perpetuated from then on. The internationalists were Continental Europeans, steeped in Enlightenment thinking. The Enlightenment philosophers believed that progress in the social sciences was possible, just as it was in the natural sciences.
The First World War ended in 1918. The Versailles treaties that were concluded at the end of the war, and which were never ratified by the U.S., had among others set forth requirements for the vanquished countries to respect their minority populations. These provisions were highly unpopular and subsequently often violated.
By 1933, Hitler had come to power in Germany. The internationalists continued to meet until 1939, the eve of the Second World War. During the next war, some were to flee from France to England, some to lose family in the ensuing Holocaust. Despite the utter failure of the Versailles system and of their own efforts, after the Second World War they resumed their undertaking with unflagging energy. Among them were René Cassin, drafter of the Universal Declaration of Human Rights and future Nobel laureate, Hersch Lauterpacht, Polish-born, Viennese-educated law professor at Cambridge and future judge on the International Court of Justice, and Raphael Lemkin, who coined the term genocide and after the Second World War spent his life campaigning for passage of the U.N. Genocide Convention. Both U.N. documents insist on the importance of the individual in international law.
Today, the world is linked as never before through technology and commerce. It has become truly international in those senses. International law insists that it too is global. It is, however, the creation of Europeans from a particular cultural, historical, societal and religious (Judeo-Christian) background. Through its claim of universality, it applies to peoples who had no part in creating it, and whose cultures, histories, social and religious backgrounds may have little in common with those who formed modern international law. If a group believes that war is good, not evil, how can international law based on the requirement of peace hope to have an effect?
International law today recognizes a right to self-defense. All other military operations are illegal except when previously approved by the U.N. The U.N. today is incapacitated by the composition of its permanent Security Council members because they veto each other on major geo-political issues. Thus, even after the U.N.’s limited attempt to monitor matters in Bosnia had failed to prevent a massacre, it refused to approve the military incursion of NATO in 1995 to prevent further loss of life. Today, the requirement of U.N. approval for humanitarian military intervention signifies a virtual promise of inaction. Increasingly, international law scholars have therefore been calling for humanitarian military intervention without prior U.N. approval, despite the dangers of abuse that this may entail.
Some in the international law community do not believe that war is necessary and continue to believe that following an international law mandating peace is the way to attain a world of peace, even if it means tolerating some violations, however unjust, along the way, and even while acknowledging the U.N.’s paralysis in authorizing humanitarian military interventions. Others, especially historians of war, tend to disagree. Their view is that during the cold war period, peace was maintained because of nuclear deterrence, not international law, that war is endemic to human nature, and that it is a grave mistake ever to forget that war is a looming danger. After almost eighty years of peace since the Second World War, the West no longer believed that there could be another major European war, and so was greatly shaken by Russia’s invasion of Ukraine. This also was the mistake Europe made before the First World War, because no major European war had occurred in a hundred years (1815-1914). Some believe that the European peace had been kept that long due to the exceptional diplomatic skill of Metternich at the Congress of Vienna (1814-1815), and that similar skill in balancing interests among all major power players is the best hope today for keeping future catastrophic wars at bay.
If war is inevitable, some ask if it can be moral. Those who believe that it is never moral have even argued against rules of humane military conduct based on the belief that such rules render war more palatable to the public, that the crueler the war, the more likely the population is to demand its end. Others believe that some wars are moral. They tend to favor strict rules of humanitarian conduct, including both the humane treatment of captured soldiers and avoiding any civilian deaths if at all possible.
We live in a world of weaponry that can destroy us all. International law has a role to play, but history shows that it does not prevent war when nations feel that their interests are sufficiently threatened. Skillful diplomacy no doubt also is a necessary component of keeping the peace. The reality that cannot be overlooked, however, and which is the most difficult to address for international law and public policy is that the hearts and minds of populations are essential. Without them, laws will not be effective, no matter how well crafted, intended or desirable they may be.
Vivian Grosswald Curran is a Distinguished Professor of Law at the University of Pittsburgh School of Law and a past President of the American Society of Comparative Law. A discussion of these issues in greater depth will be available in The International Legal Order and the Rule of Law, 33 S. Cal. Rev. L. & Soc. Justice (forthcoming, 2024).
