Over the past few years, there have been flagrant violations of international law in the Russia-Ukraine war, the conflict between Israel and Hamas in the Gaza Strip and the civil war in Sudan. As a result, the skepticism against international law has increased. These violations include the crime of aggression, war crimes, crimes against humanity and also genocide. Modern international law was born in the aftermath of the atrocities of World War II.

During this time, the international community was horrified by Nazi concentration camps, the atomic bombs dropped on Hiroshima and Nagasaki, and the even more destructive conventional bombing of Tokyo and Dresden. The preamble to the United Nations Charter 1945 stated that “We the peoples of the United Nations are determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.”

Instead of fulfilling this promise, many argue that the law against war appears to be dead. It is hard to deny that international law has in many ways failed; wars have not stopped and civilians remain unprotected. Yet, legal academics like Eyal Benvenisti argue that “Even if powerless to restrain those strong enough to disregard it, international law at least persists in declaring and condemning raw assertions of power as illegal. Thus, the project of international law has not been in vain.”

For others, though, it is not that clear-cut. Instead of offering us the language of critique in condemning the state’s illegal conduct, it also offers the vocabulary for states to justify them. The rules of war are invoked by one side to condemn the bombing of a refugee camp and by the other side to legitimise it. While one side declares the bombing unlawful as it intentionally targets civilians and the losses are disproportionate, the other side says the commanders lurking in tunnels beneath the camp render it a lawful military target and the losses are not excessive. In this way, law becomes the servant of war.

Another criticism is that international law is inherently Eurocentric and has always been used as a tool for the West to deploy against the Global South. This criticism is based on the fact that The Global South was largely absent when the United Nations Charter or the Geneva Conventions were being drafted after World War II. Moreover, as much as Western powers were trying to create laws to prevent the horrors of the World Wars and ensure they did not happen again, they were also trying to preserve their ability to wage future wars, particularly in their colonies.

Therefore, the ability to “suppress anti-colonial rebellion, to starve enemy populations through blockades, and to engage in carpet bombing and use of nuclear weapons” was still considered lawful, in the event that Western powers would have to go to war against the Soviet Union or within their empires. Literary critics such as China Miéville acknowledge this and argue that given the origins of the law, who created it, and whom it was intended to serve, “A world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law.”

States of the Global South gained a greater say when the Additional Protocols to the Geneva Conventions were drafted in 1977 after the Vietnam War. Boyd van Dijk notes that “Third World victims of starvation gathered in Geneva… [and] formulated a historically unique (though conditional) prohibition against starvation.” They also campaigned fervently on behalf of “freedom fighters” contesting the strict criteria required to grant them prisoner of war status. International law hinges on the notion of juridical equality between states. As new states emerged after decolonisation, they turned to Geneva in 1977 to pursue their own interests and recognition of their often brutal anti-colonial wars. This led to protections in international law which had not existed in 1949.

The envisaged horizontal equality between states is undermined in many ways by the international legal order. The permanent five members of the Security Council, who have the power to veto any resolutions by the institution are a key symbol of this. These members were selected on the basis of Great Power politics as they were in 1945. Some of these states are now largely irrelevant, while other emerging powers have been excluded.

It also allowed the United States to create the new post-WWII order to promote its own interests. It has protected itself and its allies from censure through the use of the veto. Instead of a focus on international law, it has advanced the ‘rule-based international order’ which is largely seen as a selective application of the law against states which oppose Western hegemony. This highly undemocratic system allows any of the P5 to paralyse the Security Council’s ability to maintain international peace and security, even in the face of grave international law violations. Hence, it must be reformed.

The answer, it seems, then is that international law matters — but only so much. It is “a living system, built over generations and sustained by those who refuse to let it be dismantled”, and it has endured, and even emerged stronger, after times of great skepticism and aggressive attacks against it, with states deciding that more laws are required, not less. And yet, blind reverence for the law is also not the answer.

To say that ‘these are perfect rules if only they were implemented,’ ignores where these laws came from, their inherent imperfection, and the selectivity with which they are applied. The real answer would perhaps be that for international law to still matter, a great amount of solidarity, collective spirit and political will is required to reform the system so it better upholds the promise made in the preamble to the UN Charter of 1945. The promise of ‘never again.’

This article by Ayesha Malik was produced with the support of the International Committee of the Red Cross (ICRC) as part of the Legally Speaking podcast series. The views expressed are the author’s own.