Introduction
International law in simple words can be understood as a body of rules that control or affect the rights of nations in their relations with each other. The point to ponder over is how sacrosanct it is with international relations and diplomacy in general. The current usage of international law is more aligned in the system of alliances and treaties with which nations preoccupy themselves according to their interests which is based on their economic, political and social beliefs as to what will benefit them the most. These interests aren’t static and the positions of nations vis-a-vis their counterparts works in a very dynamic manner. Even the government of the day in the state and its orientations and the pool of electorates (in the case of democracy) it tries to influence is a prime factor that decides the nature and scope of diplomatic ties. The classical example of Egypt, which under Gamal Nasser was a nemesis of Israel but under Anwar Sadat turned into one of Israel’s most trusted partners of the region post the Camp David Accords of 1979 bears the testimony of a domestically induced diplomatic shift.
It is tremendous how these international ties define the scope of international law and its enforcement and how being on two different ends of the spectrum i.e as allies or as nemesis shapes up the legitimization of actions of state in the eyes of the international community. The aspect of friendship in international law in the view of legitimizing or delegitimizing actions can be seen under the same light.
A Brief History of Evolution of Friendship in Diplomatic Conducts
Europe being the first one to be industrialized witnessed the foremost instances of the system of alliances that had started after the coming of the nation state system post the Peace of Westphalia which ended the 30 years’ war in Europe. The Diplomatic Revolution of 1756 took place after the War of Austrian Succession (1740-1748), which was a process of the ‘Stately Quadrille’ ; broadly meaning the shifting alliances between the great European powers in the 18th century to maintain or upset the balance of power in Europe. The Seven years war (1756-1763) was fought by the protagonists owing to the new alliances and became one of the first instances of friendship in the form of alliance during conduct of a war. After the Concert of Europe, the Cavorian and Bismarckian diplomacy maintained the alliances to preserve their newly formulated nations, Italy and Germany respectively. In-fact, disruption of the delicate balance fostered by Bismarck is attributed as one of the major causes of World War 1. Post the treaty of Versailles, alliances came in the form of Rapallo Treaty and Little Entente; mainly sought for respecting the participants sovereignty and common defense against the enemy, respectively. World War 2 was a catastrophe like no other in the history of mankind.
Amongst the status quo that the post war period challenged, uprooted, and dismantled; the change in the perception of international law was foremost. The weakening of colonial masters from Europe which were tattered by the ruthless onslaught by the Axis powers led by Nazi Germany ushered an era of decolonization and independence of Third world countries. Cold war brewed between the two superpowers of the day – USA and the USSR and is attributed with proxy wars between them around the globe for the territorial, ideological and influential hegemony. Friendship in international law had taken the course of justification and course correction in the form of proximity with either of the blocs and in turn these two bloc coming to the aid of the aggressor states, not only as an international voice but also in the form of legitimizing a set of action, otherwise prohibited by the UN Charter drafted in the year 1945. The practice has continued ever since, even after the fall of the USSR in 1991. The transition from unipolar to bipolar to a multipolar world has been hazy and the lines have not been strict. Friendships, though often than not, aided the allies of the behemoths to get away with most of the acts and omissions.
Authorisation and Legitimization of Acts: The USA – Israel Friendship
Friendship in international law has been classically seen in the emergence of Israel post the Second World war. The United States had tendered unconditional support to the state of Israel, mostly in consonance with its policy of maintaining economic and political hegemony in the Middle East after the disposition of Mohammad Mossadegh in 1953 and installing a favorable Shah Pahlavi regime in Iran; prime motive being securing a regular and unabated supply of oil. Also, the fear was real with most of the middle east moving into the Soviet sphere of influence.
The result of such political games was seen almost immediately in the Arab – Israeli wars. After winning the first war of 1948, the act of “superpower hobnobbing” dished by Gamal Abdul Nasser, the President of Egypt to the USSR and USA in the 1956 Suez Crisis led to a crushing defeat for Israel alongside France and Britain. In the remaining two wars of 1967 (Six Day War) and 1973 (Yom Kippur/ Ramadan War), Israel was able to achieve the inevitable triumph. Interestingly, the US had decided to keep itself away from the 1956 Suez Crisis owing to Nasser’s brilliance and Eisenhower-Dulles (President and Secretary of State of the United States) apprehensions of Nasser’s Soviet romance. The war of 1967 had seen neutrality from both soviets and the US. The classified documents revealed that the then President Lyndon Johnson did help the Israelis, providing them with superior airpower which proved decisive in the war. In 1973 though, Israel received unconditional arms and logistics in the form of support. The results of both the contrasting situations are for everyone to see.
The scope of the US-Israeli friendship has been to such an extent that in the year 1973, US almost risked to scuttle detente, a policy formulated by Henry Kissinger and Richard Nixon for the de-escalation vis-a-vis USSR during the zenith of the cold war. Even after the Security Council Resolutions, Israel was unwilling to stop its advance towards Egypt which had irked Brezhnev. The then Premier of the USSR acted on the behest of the Egyptian President Saadat who after losing initial gains of the war was pressing for a ceasefire. The threat given by Brezhnev was of “unilateral actions” in turn ensuring that the US nuclear forces were put on worldwide alert on October 25th, 1973. It was only after the Security Council Resolution 340 and deliberations from the United States that the ceasefire was accepted from Israel, later in the day. This incident brought the United States closest to a nuclear confrontation with the Soviets at any point since the Cuban Missile Crisis of 1961. The recent Israeli attack against the Hamas in settlements of Gaza and West Bank have been met with an overwhelming force. Israel traditionally has often fallen back on the Article 51 of the UN Charter which recognizes the right of “self-defense” as an “inherent” right of “states”. What has been constantly omitted is the customary rules of proportionality and necessity.
Article 51 of the UN Charter talks about necessity and proportionality. Necessity determines whether defensive force must be used to respond to an armed attack, and where it must be directed. Proportionality talks about regulating the conduct of hostilities so as the expected incidental harm is not excess in relation to the anticipated military advantage. The principles of necessity and proportionality are recognized as requirements of outstanding legal and practical importance for the right of self-defense. Deliberating on the language of Article 51, the madness of annihilating the entire settlement of Gaza does not fit into either the clause of necessity which states a defensive force to respond to an armed attack and where it needs to be directed or proportionality which governs total force permissible in doing so. Blowing hospitals, dropping white phosphorus bombs, cutting, and blocking humanitarian aids is clearly neither proportional nor necessary. Also, going strictly by the verbatim of the charter, it can only be invoked against a “state”. Interestingly, the USA and Israel do not recognize Palestine as a state.
The Israel – Palestine Issue (2023)
Diplomatic relevance plays an important role in the international actions towards the aggrieved state. Situations at Palestine; Gaza and now Rafah precisely reasserts the fact that laws of friendship don’t work in a vacuum and the interests of the nations, both allies and nemesis, play the single most important role in its conduct. The war which started as a retaliation for the October 7 attack of Hamas over Israel mainland has taken the form of a mass humanitarian crisis in the region. It was clear from the beginning that Israel had a full-fledged US support to carry its operations which were intended to finish Hamas to ensure her security, preserve its frontiers and end the long impending threat of Hamas which had constantly haunted Israel. What unfolded was blatant violations of international law, instead.
In an effort by a prosecutor to seek arrest warrants for top Israeli officials and Hamas officials for alleged war crimes in Gaza, the United States lawmakers have passed legislation that aims to sanction the International Criminal Court. Though largely symbolic, it illustrates the unconditional support for Israel that persists among the majority lawmakers of the main parties in the United States. The United Kingdom has also slammed the International Criminal Court (ICC) for the arrest warrants. This is what friendship in international law and the role of diplomacy in particular looks like. USA has been losing ground in the Middle east owing to frequent Russo-Sino positioning and views Israel as a hedge for attaining its hegemonic stance in the region. UK, despite widespread discontent domestically over the Gazan war, has decided to side with her most trusted ally, the United States.
The currents of friendship transcend international law in general. It even puts at stake the very fundamental international humanitarian law. Consider the case of blocking of aid by Israel to the Palestinian people. Israel has not been able to come up with the exact reason for doing so. Millions of people are starving to death and there is a widespread humanitarian crisis in areas like Gaza and Rafah. The International Court of Justice (ICJ) has twice ordered provisional measures which required Israel to let the aid get through. South Africa’s case against Israel in the ICJ which alleged that Israel is violating the Genocide Convention of 1948 which talks of an “obligation to prevent genocide”. There have been repeated requests by the US to Israel for letting the aid through, but to no avail. On the contrary, the USA has been the provider of the deadly weapons which Israel has deployed against Palestine’s. The US is seeing a different picture out of this conflict. By running with the hare and hunting with the hounds, the US has tried to keep her moral superiority alongside balancing her interest in the region. These interests entail that Israel functions like a balance against the much alienated (now Sino-Russofied) Muslim theocracies of Middle east. Israel knows this dilemma and by ignoring the highest authorities of legal enforcement in international law, she is hedging herself against all odds.
Conclusion
Statecraft in relation to friendship in international law is a trivial but well-established mechanism. A lot of this conduct depends on the personality of the leaders conducting it, no doubt why we have had the biggest diplomats in the 19th and 20th century, making statesmanship a different set of expertise of its own. The 21st century has seen that the world order has become truly multipolar, changing its face from unipolarity which had established itself post the demise of communism and the fall of the USSR in 1991. With multiple big players, we have multiple fulcrums of legitimization and authorization. Moreover, the intertwining of economies has resulted in fence-sitting of the global community when international law has been put at stake by the big players. This community only speaks when their interest gets flouted, or when their bigger partner asks them to speak as seen with the voting on the Security Council Resolutions. The complex nature of international law is dastardly on the local population and the people who end up on the wrong end of the stick in this game. The ultimate test lies in using these friendships to humanitarian benefits across the globe to weed out bigger problems like poverty and hunger. There is an overwhelming population post the covid phase which needs social assistance for their survival, be it in a continent like Africa or war-torn nations like Yemen or the Palestinian enclaves. One hopes and prays that the “friends” are paying some heed!
Atul Pal is an LLM candidate at London School of Economics and Political Science.
Picture Credit: REUTERS/Ronen Zvulun
Jindal Forum for International and Economic Laws 