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Guest Essay
By Spencer Ackerman
Mr. Ackerman is a foreign-policy columnist for The Nation and the author of “Reign of Terror: How the 9/11 Era Destabilized America and Produced Trump.”
No sooner had a nearly unanimous United Nations Security Council passed a resolution demanding an “immediate cease-fire” in Gaza last month than the United States and Israel acted as if it were a meaningless piece of paper. Israel, unwilling to accept a U.N. mandate, continued bombing the overcrowded southern city of Rafah and besieging Al-Shifa Hospital in Gaza City. Shortly after the vote, Biden administration officials called the resolution, No. 2728, “nonbinding,” in what appeared to be an attempt to deny its status as international law.
It was a confounding approach from an administration that allowed the resolution to go through with an abstention after vetoing three earlier ones. It also triggered a predictable bout of hand-wringing over the value of international law. At the State Department press briefing after the resolution passed, the department’s spokesman, Matthew Miller, said the measure would neither result in an immediate cease-fire nor affect thorny hostage-release negotiations. One reporter asked, “If that’s the case, what the hell is the point of the U.N. or the U.N. Security Council?”
The question is valid, but it’s also misdirected. U.N. resolutions that are written without enforcement measures obviously cannot force Israel to stop what its leadership insists is a justified war necessary to remove Hamas and prevent another Oct. 7 massacre. But it’s just as obvious what entity can make Israel stop, and isn’t: the United States.
Whatever the Biden administration may have thought it was doing by permitting the resolution to pass and then undermining it, the maneuver exposed the continuing damage Israel’s war in Gaza is doing to the United States’ longstanding justification for being a superpower: guaranteeing what U.S. administrations like to call the “international rules-based order.”
The concept operates as an asterisk placed on international law by the dominant global superpower. It makes the United States one of the reasons international law remains weak, since a “rules-based” order that exempts the United States and its allies fundamentally undermines the concept of international law.
American policymakers tend to invoke the concept to demonstrate the benefits of U.S. global leadership. It sounds, on the surface, a lot like international law: a stable global order, involving the panoply of international aid and financial institutions, in which the rules of acceptable behavior reflect liberal values. And when U.S. prerogatives coincide with international law, the United States describes the two synonymously. On the eve of Russia’s illegal 2022 invasion of Ukraine, Secretary of State Antony Blinken warned of a “moment of peril” for “the foundation of the United Nations Charter and the rules-based international order that preserves stability worldwide.”
But when U.S. prerogatives diverge from international law, America apparently has no problem violating it — all while declaring its violations to ultimately benefit global stability. The indelible example is the 2003 U.S. invasion of Iraq, which the George W. Bush administration cynically justified as a means of enforcing U.N. disarmament mandates. Iraq, the supposed violator, endured military occupation, while Washington’s unmatched military and economic power ensured that America faced little consequence for an invasion without U.N. authorization. Shortly before invading, the United States passed a law vowing to use “all means” necessary to release Americans detained by the International Criminal Court.
A cohort of American academics and once-and-future U.S. officials at Princeton later advocated what they called in a 2006 paper “A World of Liberty Under Law.” They framed it as addressing the weaknesses of international law, suggesting that when international institutions didn’t produce the outcomes favored by the “world of liberty,” there be an “alternative forum for liberal democracies to authorize collective action.” In practice, that forum has often been the White House. During the 2011 Libyan uprising, the United States and its allies used Security Council authorization of a no-fly zone to help overthrow Muammar Qaddafi — whose regime killed far fewer opponents than Israel has killed in Gaza since Oct. 7. American troops have now operated in eastern Syria for more than eight years, long enough for everyone to forget that there is no basis in international law for their presence.
That American-exceptionalist asterisk has been on display after each U.S. veto of cease-fire resolutions at the U.N. With Gaza’s enormous death toll and imminent famine, people can be forgiven for wondering about the point of the United States’ rules-based international order.
International law is unambiguously against what Israel is doing in Gaza. Two months before resolution No. 2728, the International Court of Justice ruled that the continuing Israeli campaign could plausibly be considered genocidal and ordered Israel to take measures to prevent genocide from unfolding. Ahead of 2728’s passage, the Canadian Parliament approved a motion, however porous, to stop new arms transfers to Israel. And the day the Security Council approved the resolution, the U.N.’s special rapporteur for the occupied Palestinian territories, Francesca Albanese, recommended that member states should “immediately” embargo weapons shipments to Israel, since Israel “appears to have failed to comply with the binding measures ordered” by the international court.
But after 2728 passed, the White House national security spokesman, John Kirby, clarified that U.S. weapons sales and transfers to Israel would be unaffected. To the astonishment of some Senate Democrats, the State Department averred that Israel was not violating a Biden administration policy that recipients of American weaponry comply with international law. Last week, the White House reiterated that it had not seen “any incidents where the Israelis have violated international humanitarian law” after the Israel Defense Forces repeatedly bombed a convoy of aid workers from the World Central Kitchen who had informed the Israelis of their movements, killing seven.
The reality is that Washington is now arming a combatant that the United Nations Security Council has ordered to stop fighting, an uncomfortable position that helps explain why the United States insists 2728 isn’t binding.
And that reality isn’t lost on the rest of the world. The slaughter in Gaza has disinclined some foreign officials and groups to listen to U.S. officials about other issues. Annelle Sheline, a State Department human-rights officer who recently resigned over Gaza, told The Washington Post that some activist groups in North Africa simply stopped meeting with her and her colleagues. “Trying to advocate for human rights just became impossible” while the U.S. aids Israel, she said.
It’s a dynamic that sounds awfully reminiscent of what happened outside Europe when U.S. diplomats fanned out globally to rally support for Ukraine two years ago. They encountered “a very clear negative reaction to the American propensity for defining the global order and forcing countries to take sides,” as Fiona Hill, a Brookings Institution scholar, observed in a speech last year.
If the United States was frustrated by that negative reaction, imagine the reaction, post-Gaza, that awaits Washington the next time it seeks global support for the target of an adversary. The dead-on-arrival passage of resolution 2728 may very well be remembered as an inflection point in the decline of the rules-based international order — which is to say the world that the U.S. seeks to build and maintain.
Rising powers will be happy to cite U.S. precedent as they assert their own exceptions to international law. For as Gaza shows in a horrific manner, a world with exceptions to international law is one in which the least powerful suffer the most.
Spencer Ackerman is a foreign-policy columnist for The Nation and the author of “Reign of Terror: How the 9/11 Era Destabilized America and Produced Trump.”
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