To be clear, many in and out of the US government often treat the term “rules-based international order” as a synonym for international law. And proponents of the rules-based international order are happy to use or hail international law when it serves the United States, like when the International Criminal Court seeks to arrest Vladimir Putin for his war crimes in Ukraine. Yet the United States will never submit itself to the ICC. Under President George W. Bush, the US revoked its (unratified) signature to the treaty establishing the court. Under President Donald Trump, it sanctioned the families of ICC prosecutors who opened a war-crimes investigation into the US war in Afghanistan. That is how the rules-based international order operates. It doesn’t replace the mechanisms of international law; it places asterisks beside them. The rules may bind US adversaries, but the US and its clients can opt out. A brief history of how the US spent its post–Cold War moment of supreme global power shows the rise of what we now call the RBIO at the expense of international law. When the United Nations wouldn’t authorize war on Serbia to save Kosovo, the United States acted as if NATO wielded the same imprimatur, and no nation was strong enough to challenge its assertion. That impulse was supercharged by 9/11. The 2003 US invasion of Iraq made a mockery of international law while claiming cynically to uphold it.
What began as a response to an emergency in the Balkans is now routine. President Barack Obama turned a UN humanitarian mission in Libya into supporting the overthrow of Moammar El-Gadhafi. After the wreckage of Iraq became the horror of ISIS, the US stationed troops in eastern Syria with neither UN mandate nor invitation from the unfortunately enduring Bashar Assad. Trump ordered the assassination of Qassem Soleimani, one of the most important figures in the Iranian government.
“The RBIO cannot replace international law—international law is inherent in the very concept of a state, of an international boundary, of treaties, of human rights,” Mary Ellen O’Connell, an international-law expert and professor at the University of Notre Dame, said via e-mail. “But the RBIO is undermining knowledge and respect for the system of international law. The law’s capacity to support solutions to global challenges from war and peace to climate change and poverty is being severely degraded by this competing, deeply flawed concept.” Now consider what Israel is doing in Gaza. By early November, it was killing an estimated 180 children a day. The IDF demanded that Palestinians abandon their homes in northern Gaza and then, when hundreds of thousands complied, attacked the destinations in southern Gaza it herded them toward. After starving Gaza, denying it medicine, shutting off its communications, killing its journalists, besieging and even raiding its hospitals, and asserting that places of mass refuge are Hamas positions, Israel claimed to have killed “dozens” of Hamas commanders, out of a total death toll at the time of 10,500 Palestinians. There is no way to square those figures with international law’s demands for distinction and proportionality. Israel, however, knows it has something stronger than international law: the protection of the rules-based international order.
Adherence to US hegemony determines who does—and does not—get to violate the architecture restraining state violence.
