International justice cannot stop the war. What can?

The question that motivates this Special Issue – What can international justice do to stop the war? – can be answered in one word: Nothing. My goals in this short essay are to unpack this response, and explain why it is more a call for engagement than a counsel of despair.

I.

Framing the question in terms of international justice is a notable departure from QIL’s announced purpose, which is ‘to foster . . . debate on questions of public international law.’[1] Any effort to address the question requires an understanding of the term ‘international justice.’

Perhaps this phrasing suggests a deep relationship, if not identity, between international law and international justice. This approach has a deep historical pedigree, as natural law understandings of international law were dominant through the Middle Ages. Yet it would be surprising if the editors intended to invoke this tradition. Natural law approaches were eventually supplanted by positivist approaches, and today are largely disfavored. Moreover, much scholarship today is quicker to link international law to global injustice than to justice; the editors’ question is surely more closely associated with, in their words, ‘disenchantment (if not despair)’ than to more triumphalist visions of international law.

Alternatively, the question may indirectly allude to international law in the sense that international law is a tool to create and maintain international justice. Yet it is not necessary to resolve whether international law can produce retributive justice (punishing lawbreakers), corrective justice (providing compensation to those harmed), or distributive justice (reallocating social benefits and burdens), as all of these would have greater relevance after violence has ceased, and none are centrally about stopping current conflicts.

The links between justice and stopping the war are even more complex. To say that war is unjust does not mean that stopping the war equals or produces justice. One could imagine many conclusions to current wars that would be deeply unjust, such as leaving Russia in control of large parts of Ukraine.

While the editors’ introduction highlights the increased prominence of international courts, it also refers to ‘a broad notion of international justice.’ This is entirely appropriate. International courts are not identical with, and do not exhaust the category of, international justice. Yet adopting this broader understanding only heightens the significance of using the term international justice rather than international law. Given the widespread sense that the international legal order is at an inflection point, perhaps the editors’ invocation of ‘international justice’ is less an inflation of international law’s normative qualities than a suggestion that international law’s failure to significantly constrain the devastating wars in Ukraine/Russia and Gaza/Israel means that a different conceptual framework and normative vocabulary is needed. Reading the question this way could, indeed, lead international lawyers to disenchantment or despair. More productively, it could underscore the urgent necessity to think creatively about the reforms and restructuring required to make international law a significant tool for meaningfully constraining current conflicts. Successfully engaging in this task, however, requires a clear-eyed view of the discipline’s promise and limits.

II.

To be sure, the question posed may be using a convenient shorthand, or intended to heighten dramatic effect. Yet asking whether international justice, or even international law, can stop the war risks reification, as mistakenly treating an abstraction or concept as res, a tangible thing, a material reality, akin to attributing emotions or feelings to the weather (‘an angry wind blew’). It is to treat things that are not agents as if they were agents. International law – whether understood as a set of rules and norms, an array of argumentative practices, or a profession – is an abstraction; by itself, it does not and cannot do anything. It is not an agent.

Of course, this does not mean that international law cannot be useful, or when skillfully employed is without effect. In this sense it is like other tools, such as hammers and screwdrivers, which by themselves cannot do anything but can nonetheless be enormously useful when skillfully employed. Among other effects, actors can use the widely shared, intersubjective meanings embedded in or constitutive of international law to substantially influence the behavior of other actors; law can be invoked to guide, inspire, justify, or stigmatize behavior. The point is simply that as phrased the question posed is potentially misleading as international law does not ‘cause’ or ‘stop’ behavior in the sense that viruses cause disease, or pushing the correct key shuts down a computer.

Stopping the war does not necessarily require more or less, or a different, international law. International law contains ample doctrinal resources to stigmatize or condemn the war. Skillfully employed, it offers justifications that can empower those who would make war materially more difficult or more expensive; consider various efforts to seize Russian state assets, or the UK’s decision to halt certain arms exports to Israel given its determination of ‘a clear risk that the items might be used to commit or facilitate serious violations of international humanitarian law.’[2] This is not to say that current law is entirely satisfactory, or shouldn’t be further developed. Our conception of what is possible should not be limited by current realities. It is to say that stopping the war requires sustained, strategic, collective and thoughtful human action, and international law is a potentially potent tool in this enterprise.

Put differently, to dereify international law is to underscore that it is ‘a human product, or more precisely, an ongoing human production,’^[3] and to emphasize the role of human agency that reification obscures.^[4] This insight is, by now, familiar; the real challenge, of course, is less in recognizing the necessity of action than of knowing how to act wisely and with efficacy.

This challenge presents a problem for thought as well as action. The scholars associated with QIL are thought leaders, experts at creating and using intellectual tools to make sense of the world. They are likewise experts at framing; using different frames help participants alter their understanding of ‘the problem,’ their role in it, and potential responses, and can motivate them to act in one way or another. Finally, they are also skilled at identifying the likely consequences of one or another course of action. To present persuasive frames, let alone prescriptions for action, requires engagement with alternative perspectives; it presupposes a certain form of dialogue. For a decade, QIL has provided a much-needed forum for precisely this form of dialogue, and it would well serve the international legal community if it continues to do so. Indeed, these dialogues might even help to develop understandings and strategies that can appreciably contribute to ongoing efforts to stop the war.

* Laura H. Carnell Professor of Law, Temple University Beasley School of Law.

[1] <www.qil-qdi.org/about-us/> (emphasis added).

[2] UK Government Press Release of 2 September 2024 <www.gov.uk/government/news/ uk-suspends-around-30-arms-export-licences-to-israel-for-use-in-gaza-over-international-humanitarian-law-concerns>.

[3] PL Berger, T Luckmann, The Social Construction of Reality (Penguin Random House 1967) 52.

[4] HF Pitkin, ‘Rethinking Reification’ (1987) 16 Theory & Society 263, 274.