Legitimacy of International Law in Middle Eastern Conflicts

Dana HeitzGeopolitics of the Middle East and North Africa

Legitimacy of International Law in Middle Eastern Conflicts

Introduction: Historical and ideological underpinnings

The scope of international law (“IL”) is vast, as are its subparts of private law

(governing trade, investments, enforcement of agreements between individuals) and public law

(governing interactions between states and between individuals and states). Its sources are identified in

Article 38(1) of the document establishing the International Criminal Court (“Rome Statute”) as the

following:

a. international conventions, whether general or particular, establishingrules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and theteachings of the most highly qualified publicists of the various nations, assubsidiary means for the determination of rules of law.

A full consideration of the legitimacy of IL would run to encyclopedic lengths. Therefore, this paper

considers legitimacy of only two aspects of public international law – human rights law, and

international humanitarian law, or the laws of conduct in the context of a state of armed conflict –

which are commonly implicated in interactions between the West (i.e. the states where international

law has its roots) and Middle Eastern countries, examples of which are discussed below. The discussion

of “IL” in this paper is limited to these bodies of law.

The laws of human rights and humanitarian intervention are significant in the Middle

Eastern context for three reasons. First, they provide a significant amount of the ostensible justification

for intervention in the region. While private conflicts can be addressed by the WTO or arbitration

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mechanisms, public conflicts that center on a state's conduct vis-á-vis its citizens have repeatedly led to

external powers imposing armed force in the region. Second, human rights law (“HR”) and

international humanitarian law (“IHL”) purport to be “universal” and are a common justification for

use of force against another state, even if that force is not consistently applied. Considering the

legitimacy of the asserted grounds for intervention is therefore important in determining what response

to the intervention is warranted, as well as in identifying problems with the application of IL generally.

Finally, interventions pursuant to these legal principles have extremely intimate results – they implicate

life, quality of life, and death, as opposed to private IL matters that arise when engaging with Middle

Eastern states. The likely end result of application of law to private IL matters, such as the prohibition

on usury (lending money with interest) under Islamic law, will probably not be loss of life or

devastation of homes and land.

Several different theoretical constructs inform the question of the legitimacy of public IL

and the use of force for the ostensible protection of the rights of a domestic population. Theories of

adherence to IL include the realist proposition that IL is nothing more than a tool wielded by the

powerful to manipulate less powerful states, the institutionalist view that IL promotes each state's

interest in cooperation, and the constructivist perspective that IL forms a key part of the international

social structure and the shaping of states' identities (Ruys 2009). The challenges which a lack of

legitimacy poses are most consistent with the idea that IL is nothing more than a platform for states to

flex their power. This is consistent with the use of military force to acquire access to natural resources

or military intelligence, such as NATO's invocation of self-defense after 9/11. Even later declarations

that the use of force was illegal do little to prevent states' future violations of this prohibition, and the

fact that the International Criminal Court is not presently authorized by its governing documents to

prosecute crimes of aggression means the individuals responsible for the decisions to execute the

crimes cannot currently be charged (Ruys 2009).

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While IL has evolved from a fact-based consideration of what has historically been

contained in statutes to a broader base encompassing all the sources listed above, its scope is still

limited to “civilized” states. One scholar examined the question from a social science perspective of

“whether there is any system of practices that can sensibly and usefully be described, for their

sociological or anthropological purposes, as international law,” and while he determined that this was

the case, the problem lay in the fact that the application of IL was premised on the question of whether

a state had consented to have this body of law apply to its own acts (Dworkin 2013).

Obviously a “consent-based” framework for IL is problematic. It is implicitly limited to

a consideration of “consent” by states that are in a position to enforce the civil and common-law

principles on which modern IL is built, given that Islamist legal thinkers were never included in the

codification of present-day international law. The application of IL depends on whether a “critical

mass” of states has given their consent, but there is no indication of what number rises to such a level,

and this doesn't provide a justification for extracting commitments from states which have not

consented. In short, legitimacy cannot be based on consent alone.

Even explanations which seem, at first blush, to provide a less self-interested

justification for IL still trace their roots back to Western, “civilized” legal traditions. These start with

Westphalian ideal, dating to 1648, of independent and sovereign nation-states, and the legal philosophy

stemming from the immediate aftermath of the Enlightenment, which grounded the IL framework in

“natural law.” IL was thus established as “universally applicable” and, theoretically, distinct from any

morality founded on religion. But Western European nations quickly found a number of incentives to

shift this basis and they expanded their global reach. For example, encountering civilizations with

different religions, moralities, and perspectives on individual rights presented a challenge to natural

law's implicit assumption that all nations approached the world from equal, i.e. ideologically similar,

footing. These encounters further provided an incentive for Western Europe to redefine the basis for its

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legal norms insofar as doing so would provide a “reasoned support” for Western European expansion

into and colonization of all the lands and associated resources which were now encompassed by its

sphere of influence. In this way, the principles of international law (such as sovereignty and non-

intervention) became applicable only to states that had reached the requisite level of “civilization,” as

defined by such Euro-centric standards as “guarantees of basic rights of property and person, an

organized political system with a capacity for self-defense, adherence to international law, maintenance

of a system for diplomatic interchange, and a state conforming to the “accepted norms and practices of

the 'civilized' international society” (Horowitz 2004).

Of course, while the West was still developing its standards of civilization, it was also

wielding its “civilizing” power over various Middle Eastern territories without regard for the will of the

residents of those territories. The system of mandates, established for the ostensible “benefit” of

“peoples not yet able to stand by themselves under the strenuous conditions of the modern world,” did

not take the interests of these “peoples” much into account and was far more convenient for Western

political and economic interests. For example, Jordan was created out of the Palestinian mandate which

was subject to British control in order to appease and distract the British ally Amir Abdallah from

making trouble among other nations whose interests aligned with the Brits', and Iraq was cobbled

together from territories inhabited by groups with few common interests of their own. Thus, despite the

exhortation in Wilson's Fourteen Points that “the interests of the population concerned must have equal

weight” as the colonizer, the mandates system ran decidedly counter to the interests of the populations

of these countries as well as Syria and Lebanon, thereby calling the legitimacy of these states

themselves into question (Gelvin 2011).

In this light, it is strangely (although probably unintentionally) apt that Dworkin finds

IL's basis in the duty of a state “to facilitate an international order in a way that would improve the

legitimacy of its own coercive government” (2013). This “require[s] a state to accept feasible and

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shared constraints on its own power. . .[and] sets out. . .the true moral basis of international law. It

therefore also states the basic interpretive principle” of IL. The corresponding duty under IL of a state,

organization, or other entity is the mitigation of failures and risks of a sovereign state system, but that

duty applies only where the general practices which the actor is trying to claim as international law

would, if expanded, “improve the legitimacy of the subscribing state and the international order as a

whole” (Dworkin 2013). In this view, legitimacy depends on a state's intent – is compliance undertaken

in response to consent issued for the state's own benefit or for the “greater international good” – which,

again, is a development of Western states for their own benefit?

The legitimacy problems which spring from this conception are legion. In the first place,

the concepts of a state's duty to the international system and vice versa stem from longstanding Western

doctrines of jus ad bellum (the laws of commencing war) and jus in bello (the laws applicable to acts

during war), which are derived from a Western, i.e. European, i.e. Judeo-Christian perspective which

now may or may not be accepted by Islamist governments but which they were certainly not party to

establishing. Moreover, a construction of IL based on duties and obligations leaves open several crucial

challenges. What are laws of human rights and humanitarian intervention presently positioned to do

when governments are unable to protect the citizens under their control and protection from harm by

outsiders? Or when governments rely on a misplaced deference to sovereignty in failing to intervene in

a neighboring state, thereby failing to discharge the moral duties of the citizens they represent? The UN

General Assembly presents an international parallel, to the extent its structure allows one vote to each

member state without regard to the percentage of the world's population each state represents (Dworkin

2013). These problems are traceable back to the localizing effects of the system of nation-states, and to

the extent that this system was illegitimately imposed on the governments of the Middle East, its

consequences are also called into question.

Based on these concerns, two specific issues of legitimacy arise. These problems also

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reveal why legitimacy is a necessary consideration, independent of states' mere compliance with IL

(Howse, Teitel 2010). First, the ideal of legitimacy in law is consistent with what Lincoln famously

expressed as law “of the people, by the people, and for the people.” In other words, legitimacy requires

the proper input (by the people), output (for the people) and identity (of the people). The presence of all

three of these prerequisites implies autonomy, or individuals' capacity to consider their own needs in

the context of the needs of the larger society or other group. Absent any one of these, legitimacy is

lacking. Furthermore, not only is the basis for IL undermined, but the development of a collective

identity that depends on political actions of autonomous individuals is inhibited and the integration of

law and social identity is jeopardized (Dierckxsens 2009) – thus it is not sufficient to assess simply

whether states are “compliant” with IL.

A key reason legitimacy is so important in this view is the desired effect of norm

penetration – that the legal principles underlying human rights and IHL will become ingrained in the

actions of the domestic system. Other effects are consistent with norm penetration in that they depend

on the legitimacy of IL and not compliance. For example, “legitimate” norms will result in a shift of

decision-making powers from an authoritarian government entity to the citizens themselves. The

application of IL can also bear on how the administrators of the law view their constituents, and whom

they view as their constituents – for example, “compliance” in the context of criminal tribunals such as

the International Criminal Tribunal for the former Yugoslavia is centered on meting out justice against

specific individual defendants, in lieu of a focus on truth commissions, democracy-building, and

reconstruction of civil society. Legitimacy, on the other hand, would have dictated an approach that was

focused on “law by the people,” not “law by the UN.” A simple assessment of “compliance” can also

be stretched to fit the circumstances, as in the ostensible “humanitarian” grounds for intervention in

Afghanistan and Iraq in the early 2000s which had a greater humanitarian cost than benefit – in other

words, the same act “can be seen from the perspective of an attempt to enforce compliance with a given

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norm ('humanitarian intervention') but also, as a violation of it (where there are disproportionate effects

on civilians, for instance)” (Howse, Teitel 2010).

The other legitimacy conflict that arises from the Western history of IL is the distinction

between legal legitimacy, which requires citizens to see themselves as “authors and applicants” of the

law, and social legitimacy, or the extent to which law reflects the normative and social identities of its

subjects. The capacity for IL to be integrated into societies across the world, not only in the Middle

East, is currently suffering from a “twin assault” of two opposing ideologies – the neo-liberalism which

has caused a shift in the role of the state from regulator and facilitator of social cohesion to yet another

player in the capitalist global market along with a shift among populations from citizens to consumers,

and the reactionary “neo-Romantic” response, which eschews the newfound lack of social cohesion and

superficiality of commodity-based interactions in favor of “pre-political” group identifiers such as

religion, culture, or ethnicity, leading to extreme right-wing populism and fundamentalism of every

stripe (Dierckxsens 2009).

Both these ideologies present a bar to IL taking root because they are incompatible with

the diversity and plurality which are inherent conditions of the world where IL operates. Neo-liberalism

removes interactions from their pluralistic context and strips them of any broader social significance,

and neo-Romantics have a myopic ingroup/outgroup focus which prevents acceptance of the rights of

others.

I. Two Conflicts

More than a dry recitation of the obligations of states set out in the sources of IL

described above, the international law which this paper considers involves specific legal, moral, and

ethical principles. For example, every other commonly-invoked human right rests upon the

presupposition of human dignity – the dignity of individuals which assumes each person's equal value

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and worth – which is violated by political oppression and attacks on civilians. The right of self-

determination vests dignity and other rights in persons, not states or governments. Thus, a regime

cannot invoke “self-determination” as a justification for its own existence; absent popular will it is

illegal and its continued assertion of power results in further infringement on the rights of citizens, to

other individual freedoms such as freedom of expression or political association. The fight against

unlawful political oppression and in support of democracy and the right of rebellion are likewise aimed

at upholding recognized principles of international law and core values of the UN. Notably, these are

the same values and principles supported by the revolutionaries of the Arab Spring (Paust 2012).

The norm of limitations on state sovereignty is becoming increasingly widely recognized

in the international legal community. “The pretended cloak of state sovereignty ends where human

rights begins and it is well recognized that human rights violations and international crimes are of

international concern and are not internal affairs of a single state even if they occur totally within a

single state” (Paust 2012). This concept creates the possibility of lawful intervention in the territorial

integrity of another sovereign state, but this possibility likewise has limits. The limitations on

intervention to guarantee human rights may be deliberate (i.e. pursuant to competing IL principles),

accidental (for example, resulting from ambiguous court rulings), or due to neglect on the part of the

international community.

A review of applications of international law to certain circumstances in the Middle East

reveals practical legitimacy problems which arise from the inconsistent application of IL. This paper

now turns to two of these applications – in terms of the conflicts in Libya and Syria and the role of the

doctrine of responsibility to protect (R2P), and in the Israel-Palestine conflict.

A. Arab Spring

The popular, social-media-enhanced, political uprisings of the last several years have

implicated many of the same interests IL aims to protect, but the international community's response

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has not applied international law with much conviction. The difference between the reliance on IL in

Libya beginning in March 2011 and the lack of intervention since the Syria uprising began that same

month exemplifies this discrepancy.

The similarities between the Libya conflict and the ongoing strife in Syria are far more

striking than the differences, and Guiora discusses them at length (2011). Both began as domestic

affairs with a historical foundation going back decades. Both regimes that were targeted by the

uprisings resulted from coups – Libya's in 1969, Syria's in 1970. Both regimes also committed violent

crimes of torture, killing, displacement, and imprisonment against their own citizens. Both conflicts

came to the world's attention as a result of the Arab Spring and depended heavily on the use of social

media in the process (Guiora 2011).

The Gaddafi and Assad governments both denied political and human rights to their

respective populations, in fact engaging in affirmative war crimes and crimes against humanity. Only

in Libya, however, did these crimes lead to Security Council authorization for member states to use

force, and only in Libya were the rebels provided with armed assistance by NATO (Paust 2012).

Meanwhile in Syria, the opposition hasn't received even a semblance of assistance, and

there is no clear reason for the distinction.1 The ostensible obstacle with respect to Syria has been the

lack of Security Council authorization following vetoes of action by China and Russia. However, given

that humanitarian intervention is premised on the belief that “any state capable of stopping the

slaughter [by a state of its citizens] has a right. . .to try to do so” (Walzer 1977), putting a slight twist on

the doctrine of responsibility to protect implies that a state may still be able to intervene in Syria

1 At best, this ambiguity follows an historical pattern. For example, in one analysis, “Western intervention in the MiddleEast has, in many ways, defined the relationship between the West and the Middle East” (Guiora 2011). Theseinterventions – undertaken for the sake of Western power and interests in resources such as cheap labor, political clout,and natural resources – reflect Western presence in the Middle East throughout the 20 th century and most of the 19th.During the course of these interventions, such as with the presence of U.K. interests in the U.A.E. from 1819-1968 orFrance's control over Lebanon and Syria from 1920-1946, or U.S. involvement in Iraq from 2003-onward, the aim ofmaintaining Western power often led to vaguely-defined missions which, stripped of their self-interest, had no hope ofachieving their asserted goals.

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without waiting for UN authorization. Where “legitimate” norms have failed, this still-emerging norm

may be one method of restoring legitimacy to the international legal system.

Specifically, responsibility to protect (“R2P”) was an indirect result of the Security

Council's failure to authorize intervention in Kosovo in 1999, following attacks on ethnic Albanians by

the Yugoslav president. Starting in March 1999 NATO proceeded, independent of the Security Council,

with air strikes aimed at disabling Serbia's military capacity. Serbia ultimately agreed to withdraw

military/political apparatus from Kosovo, thus laying the groundwork for Kosovo's eventual

declaration of independence, nine years later, from Serbia. The U.K. later justified NATO's acts by

arguing that despite silence by the Security Council, such interventions are legal where “1) there is

convincing evidence of extreme humanitarian distress on a large scale that requires immediate urgent

relief; 2) it is objectively clear that there is no practicable alternative to the use of force if lives are to be

saved; and 3) the proposed use of force is necessary and proportionate to the aim of humanitarian

intervention” (Williams et al. 2012). Two years later, in 2001, the independent International

Commission on Intervention and State Sovereignty (ICISS) published a report on the right of

humanitarian intervention, and announced the framework for what would become the responsibility to

protect (Williams et al. 2012).

The ICISS' proposals set out three duties under R2P – first, the duty of prevention, or

eliminating the root causes of mass atrocities; second, the duty of reaction, or affirmative acts of force

where a state has proven unwilling or unable to protect its own population or has acted as the aggressor,

and third, the duty to rebuild after intervention, or to assist in recovery, reconstruction, and

reconciliation (Evans 2008). In addition to the revolutionary re-characterization of intervention as a

responsibility instead of a right (Williams et al. 2012), R2P exemplifies several norm shifts that have

taken place since the Peace of Westphalia.

For example, developing norms are now beginning to allow intervention in the

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sovereignty of states which are unable or refuse to protect populations from HR violations. That is,

state sovereignty can be “waived” if the newly-recognized responsibilities of a state to apply protection

to its citizens are not discharged. In this view, sovereignty is a privilege which can no longer be

invoked as a matter of course to block criticism of states' human rights violations. Another changing

norm is that the use of force is becoming more permissible. This is based in part on the use of

“surgical” tactics like targeted drone strikes, which theoretically result in less collateral damage, along

with decreased political costs of intervention that result from constructions of the target states and

“unable or unwilling” to act on behalf of their own citizens. Reduced costs of force, however, may also

create bars to legitimacy even though the acting state is seeking to increase the legitimacy of its actions

by invoking R2P (Brooks 2013).

R2P is triggered by six criteria. First, “just cause” must be present. For example, an act

such as crimes against humanity (like those identified in Syria) must be taking place or be imminent.

Second, intervention must be a last resort; third, the acting state must evince the intent to act for the

sake of protecting the target state's population, not for advancing its own political gain (“rightful

intentions”). Fourth, the measures used must be proportionate, meaning for example that they may not

inflict more harm than they seek to avoid, and fifth, they must stand a “reasonable” chance of success.

Finally, the action must be approved by some recognized authority. When the proper authority is

limited to the Security Council as the case has been thus far, this results in an open question of what the

rights and responsibilities of would-be acting states are when the Security Council refuses to act

(Williams et al. 2012).

Of course, this last prerequisite contributes to the legitimacy problems that are the focus

of this paper. If sovereignty of a state in the international context involves a responsibility to protect

which places a duty on third-party states where a target state fails to act, then the duties under R2P

exist, and the analysis ends there; approval of the Security Council as intervention has required up to

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this point is irrelevant. Once the duty of intervention is recognized (as will have been established by the

time a third-party state tries to explain to the Security Council why forcible intervention is necessary in

a given conflict), a state can still lose legitimacy if authorization is denied and it simply backs down for

the sake of “technicalities of citizenship and borders” from the burden placed on it by virtue of

“universal values and shared humanity” (Brooks 2013). But a potential legitimizing solution does exist.

In 2009, the UN Secretary General issued a report setting out three “pillars” of R2P, or

assumptions on which the doctrine rests. R2P assumes that each state has a responsibility to provide

protection and security to its population, and that where a state will not or cannot, the international

community has a responsibility to “assist” the state in doing so. In the face of “manifest failure” by a

state to offer this protection, the response from the international community must be “timely and

decisive.” The possibility of intervention in the face of the Security Council's refusal to authorize such

action becomes possible based on the last principle (Williams et al. 2012).

Intervention notwithstanding a refusal by the Security Council to authorize such action

becomes possible based on the last principle, which would allow foreign states to operate outside

Council authorization for the sake of expediting a result consistent with international law. Several

authors have presented a specific proposal for expansion of this pillar which would allow third-party

countries to use armed force independent of the whims of Security Council members. First, conclusive

evidence of the existence or imminence of mass atrocity crimes must be shown by an independent and

neutral source, such as a UN agency or reputable NGO like Human Rights Watch or the International

Committee of the Red Cross. Second, peaceful options must be exhausted – sanctions, trade

embargoes, diplomacy, and other first-order measures must have been tried and found lacking in

effectiveness. Third, repeated votes by permanent members of the Security Council have failed to yield

the necessary authorization to act and the members have an evident intention to continue their

opposition. Fourth, the proposed military force would be protective, defensive measures of low

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intensity, such as enforcement of no-fly zones. Fifth, the use of force must be signed off on by some

independent authority – probably a regional governing body such as the League of Arab States or the

EU. Finally, under this expansion the intervention must be requested by opposition groups (Williams et

al. 2012).

Applying these doctrines, justifications, and assumptions to the situation of Libya and

Syria calls IL's legitimacy into question. While R2P's effectiveness in Libya is not widely questioned

among international legal scholars, its role in Syria demonstrates the lack of critical mechanisms

necessary for R2P's acceptance as a legitimate norm of international law.

Intervention pursuant to R2P in Libya proceeded reasonably consistently with the plan

of the doctrine's authors. The first Security Council measure on the conflict was Resolution 1970,

passed on February 26, 2011, which authorized non-violent arms embargoes and asset freezes against

Libya and certain individuals, and which also referred the matter to the International Criminal Court

(albeit without the associated resources necessary to complete a full investigation). This followed a

determination that Muammar Gaddhafi was responsible for human rights violations and that mass

atrocities were anticipated. The authorization of armed intervention did not follow for another three

weeks, during which time the Gaddhafi regime indicated unambiguously that it did not intend to curb

its attacks on the public, and in fact would escalate the attacks until the resistance ended. With

Resolution 1973, passed on March 17, 2011, the Security Council satisfied the requirement that

intervention be approved by the only organization whose authority over such actions is recognized.

In terms of a test for the validity of R2P, the significance of the Libyan intervention is

that the first and second “pillars” (the responsibility of each state to protect its population, and the

responsibility of the international community to “assist” a state that refuses to do so) were re-affirmed

as justification for the action, and furthermore this was the first action under the “timely and decisive”

requirement of the third pillar, based on Libya's own “manifest failure” to offer this protection

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(Williams et al. 2012). These philosophical underpinnings hold regardless of R2P's execution – for

example, in the failure of the international community to provide the financial and governmental

assistance that the third R2P duty – rebuilding – places on the intervening states (Brooks 2013).

But if Libya was on the whole a victory for the legitimacy of emerging norms of IL, why

is the conflict in Syria – which emerged the same month as the international community began its

protective assistance in Libya – still allowed to continue two years later, where the circumstances are so

closely parallel, and where the UN Human Rights Council found evidence of a “state policy” of attacks

on civilians in August 2012? The main distinction appears to be opposition by Russia and China thrice

over. Where Security Council authorization was lacking in prior conflicts, the world has seen outcomes

such as that in Rwanda (where no outside action was taken and a million people were killed) as well as

that in Kosovo (where NATO intervened without authorization and subsequently halted Serbian

military attacks against a targeted group).

These cases show that IL does not go far enough in terms of achieving the enforcement

mechanisms it needs to be recognized as “legitimate.”

B. Israel-Palestine

Another crucial area where the legitimacy of IL is called into question is the ongoing

Arab-Israeli conflict. The opposing sides on several key issues both invoke international law to justify

their positions. While this is, of course, something that happens daily in courtrooms around the globe,

in the international context it is complicated by the fact that concrete methods of enforcement of

international law are sparse and UN resolutions in particular are seldom backed by enforcement

measures (Lynk, Akram 2013). As discussed below, the rulings that have come out of this conflict

illustrate that domestic law will follow the findings of domestic courts, not international courts, where

those rulings are more favorable. This does not bode well for the legitimacy of international law.

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The good news coming from this region of the world is the capacity of IL to facilitate

the rights of sovereignty and self-determination of nascent states. International legal sovereignty is a

crucial aspect of the identity of a state, and this forms the basis of a normative justification for viewing

IL as a tool of advancing sovereignty (Yoffie 2011). In this regard, IL is key to the legitimacy of a state,

and the recognition the new state receives will therefore reflect on the legitimacy of IL. The normative

justification also helps excuse the inherent conflict between the emergence of a new state and

“traditional” Westphalian sovereignty.

Emerging IL norms of the right to self-determination and the responsibility to protect

impart the international system with a second chance at facilitating Palestinian statehood, after the first

(GA Resolution 181, passed in November 1947) fell by the wayside. Following acceptance by Jewish

institutions and rejection by exiled Arab leaders, the abandonment of this early UN resolution

eventually led to Israeli statehood, and since then the clashes, conflicts, and wars have continued

virtually unabated. Ironically, Israel's beating Palestine to the punch of declaring statehood in the wake

of the rejection of the partition has now positioned it, as a member of the UN, to assert its own opinions

regarding Palestinian recognition (Yoffie 2011).

However, Palestine can still circumvent Israel's veto and lobbying power, by focusing its

own lobbying on the major international bodies of the UN Security Council, General Assembly,

International Court of Justice, and International Criminal Court. The paths to statehood that run through

the Security Council and General Assembly are too politically fraught to stand much of a chance of

success; thus, Palestine has the option of availing itself of the relatively freer international courts. For

example, if the Palestinian Authority could convince the General Assembly to request an advisory

opinion on the matter, the ICJ could issue a reprise of its advisory opinion following Kosovo's

declaration of independence, and adjudicate whether the declaration of a Palestinian state was in

accordance with international law. For its part, the International Criminal Court need not issue a ruling

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on the legality of a Palestinian state – instead, because the authority of the ICC only extends to state

defendants and not individuals, the ICC's hearing of a case against Israel would implicitly amount to an

acknowledgment of Palestinian statehood (Yoffie 2011).

The situation with Israel and Palestine, in one view, thus supports the legitimacy of

international law. But the extremely different outcomes on other legal issues seem to imply the opposite

effect, and indicate the arbitrary, power-based effects of IL. Specifically, there is a sharp contradiction

between Israel's reliance on the UN for its very existence (for example, pursuant to Resolutions 181

and 194), and its disregard for UN resolutions with respect to conflicts that have arisen with Palestine.

At best, ongoing departures from UN-sanctioned outcomes provide an ongoing test for the capacity and

legitimacy of IL; at worst, they indicate that IL is useless.

The first of these issues is the question of belligerent occupation (or the possession

during armed conflict by one party's military forces of enemy territory) by Israeli forces of the Gaza

Strip until 2005, and parts of south Lebanon lasting from 1982 to 2000. Israeli involvement in these

territories was identified as belligerent occupation in Resolutions 237 and 242, the latter of which

called for the withdrawal of Israeli armed forces from these occupied territories, and the International

Court of Justice issued an advisory opinion consistent with this determination. The government of

Israel disagrees on the basis that these territories are subject to “negotiation” before determining their

status under international law; however, in the opposing view, the UN Convention applies to all

occupations regardless of the surrounding circumstances. Therefore, because Israel has consented to

accept the Convention, it is also constrained to accept the findings of courts of law consistent with the

Articles of the Convention (Lynk, Akram 2013).

A second issue is the 4.9 million refugees who were registered with the UN Relief and

Works Agency for Palestinian Refugees as of 2011, many of whom can date their status back to flight

in 1947-49 because of military attacks or fear of attacks by Israeli forces. The ambiguous legal

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questions here involve, for example, considerations of the scope of the right of return. Does this right

apply, for example to any part of historic Palestine? Those who believe the governing Resolution 194

applies to all regions assert that this resolution requires Israel to re-admit refugees to all regions based

on their nationality and principles of non-discrimination or humanitarian law, because this right is

intended to benefit individual refugees and not institutions. Those who believe that Resolution 194

places limitations on the right of return claim that the resolution is 1) non-binding and 2) conditioned

upon “living at peace” with Israel, which is subject to the judgment of Israel alone who also decides

when and how many refugees can return. Other, equally confused matters exist with respect to

restitution and compensation for property and other damages (Lynk, Akram 2013).

A third issue arises from the illegal settlements that spill over the boundaries of Israeli

territory into territory which by all accounts is occupied Palestine. The consensus pursuant to a body of

law known as the Hague Regulations (which treat the occupying power as an interim administrator and

fiduciary charged with protecting and managing territories for benefit of indigenous populations until

returned to sovereign government, instead of allowing annexation of occupied territories) is that the

settlements are illegal. On this point, the ICJ noted in July 2004 that Israeli settlements in the

Palestinian territory are in breach of IL. Other laws proscribe transfer of an occupying population into

territory as well and the UN has passed “many” resolutions against the settlements since the first of

them in December 1971. In spite of these and other opinions holding the settlements illegal, including

that of the EU Council and various international legal scholars, no enforcement of actions against Israel

has taken place. For its part, Israel argues that the settlements are fine, because Geneva Convention IV

and legislative intent “do not apply to Palestinian territories,” which were not part of any sovereign

state when Israel asserted control over the territories (Lynk, Akram 2013).

Finally, an advisory opinion issued by the ICJ in 2004 – establishing that a wall through

the West Bank and East Jerusalem was illegal – led to a split between international and domestic legal

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holdings. Although the ICJ determined that the Fourth Geneva Convention applied and was breached,

the Israeli Supreme Court disagreed. It determined that the wall complied with the legal requirements

overall, even if some parts had to be moved. Furthermore, the Israeli Supreme Court issued a later

decision in 2005 which rejected the ICJ Advisory Opinion as non-binding based on an incomplete

factual record and flawed analysis of impact of different segments of the wall (Lynk, Akram 2013).

In sum, while the international system offers hope for some outcomes of the Israel-

Palestine conflict, many of the decisions which control the matter are inconsistent and reveal the

weaknesses of IL in terms of issuing binding decisions which are useful in inducing nations to modify

their conduct and interactions on the world stage. Lynk and Akram identify the problem neatly: “The

distance between legal principles and Realpolitik in the Middle East has repeatedly dimmed the

prospects for a genuine peace in that tormented region” (Lynk, Akram 2013).

II. Significance for international law

The concept of sovereignty appears to be undergoing a shift from a “right” to a

“privilege,” apparently one which is to be meted out according to standards of “civilized” countries.

The changing legal norms that have been brought about by the recent focus on counterterrorism, al

Qaeda, ideological wars, and other borderless conflicts have caused the “logic of sovereign non-

intervention principles [to lose] force.” They create new concerns of circular logic (US incursion into

Abbottabad in May 2011 would have been allowed under Pakistani consent but also without consent,

because that would indicate unwillingness or inability to do so and thus justify intervention) which

could have a de facto result of each state deciding for itself when to use force within another state

(Brooks 2013). This brings up the legitimacy conundrum of “how far the human rights concept can be

stretched without becoming self-defeating” (Vandenhole 2009). The situations laid out above illustrate

how IL's legitimacy is already lacking in ways that future conflicts will only build upon.

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A. Syria

Based on the invocation of international legal values such as self-determination and

democracy by the Syrian opposition, it is apparent that the social legitimacy of IL in the context of the

Syrian conflict is intact. But it's difficult to say the same of its legal legitimacy; if Syrian citizens are

the “authors and applicants” of the law, this would have likely resulted in external international

intervention having taken place already (Dierckxsens 2009). This incomplete result is consistent with

the succinct statement by one scholar that

repressive regimes of [the Middle East] were always asterisks to theglobal trend towards democratization: even as autocratic regimes in LatinAmerica, Russia and Eastern Europe tumbled, oil-rich Arab politicalleaders clung to power, with little protest from the Unites States or otherpowerful nations. As long as the oil flowed, few wealthy states wereinclined to push too hard for reform (Brooks 2013).

Apart from the West's traditional disengagement from Middle Eastern struggles for

democracy, it is hard to appreciate the reason for the lack of intervention in Syria, especially

considering that Libyan intervention came at a time when a thousand people had been killed as opposed

to the tens of thousands who have been murdered in the Syrian conflict. (Nichols 2013; Guiora 2011).

A lack of Security Council authorization is no longer a sufficient excuse to refrain from

action, because one of the key concerns leading to that requirement – the need to avoid waging wars for

an ulterior, self-interested motive – can be circumvented based on the expansion of R2P. For example,

UN Charter Article 2(4) provides that “All members shall refrain in their international relations from

the threat or use of force against the territorial integrity or political independence of any state, or in any

other manner inconsistent with the Purposes of the United Nations,” but this ambiguous instruction

does not prevent intervention as a whole – some have argued, for example, that the lack of an effective

government in a state has already eliminated its territorial integrity, and furthermore that the only

prohibited use of force would be that aimed at political domination. This further calls into question the

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legitimacy of the asserted justification for a failure to intervene pursuant to the responsibility to protect

(Dworkin 2013).

As shown above, R2P has been constructed as a doctrine which is consistent with “the

Purposes of the United Nations,” subject to the limitations of rightful intentions, proportionate use of

force, a just cause, etc. The developers of the doctrine did not intend for the Security Council to have

the final decision on whether R2P would apply in a given state; thus, the expansion proposed by

Williams et al. as discussed above becomes necessary, despite the risks of its invocation by “powerful

nations to justify aggressive war as a protection of basic human rights [which] boils with the danger of

abuse” (Dworkin 2013). Other safeguards against abuse of power under Article 2(4) also exist, for

example allowing intervention where two criteria are met, i.e. a Security Council majority vote and

determination by the International Court of Justice that the acts requiring the intervention constitute

crimes against humanity. The point is that the failure to intervene in Syria is undermining international

law's claims to legitimacy and credibility.

B. Israel

The conflict between Israelis and Palestinians predates the sharp turn toward consumer-

based citizenship of recent decades, but it still features a stark ingroup/outgroup distinction which

informs the political issues that is consistent with the associated resurgence in neo-Romantic identity

politics. The discrepancies in the application of international legal principles by international and

Israeli bodies indicates that while IL may enjoy social legitimacy (i.e. a construction of the citizenry as

one that is willing to be bound by the rules of the international legal order) and legal legitimacy (in

which the subjects have a stake in the lawmaking process), it still faces the obstacle of an effective

output before it can be acknowledged as legitimate. That is, there is no indication that IL as applied to

this situation is “law for the people” (Dierckxsens 2009).

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CONCLUSION

The relevance of legitimacy in this context lies in the justificatory discourse for

(in)actions of international bodies. The invocation of IL indicates that the actors are aware of rules as

relevant in some capacity or other, even if only pursuant to the impression that other states view them

as relevant and will therefore assess the acting state's actions against those rules (Ruys 2009). However,

the effect of the discourse here appears to be little more than window dressing – an effort by

international legal institutions at communicating their “seriousness” about their obligations, and of

proving the relevance of IL to make it available in future circumstances where it may finally be given

some enforcement.

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