Peace Policy: Solutions to Violent Conflict, February 2024
Atalia Omer, Mary Ellen O'Connell, Ernesto Verdeja, Cecilia M. Bailliet
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Omer, A., Ellen O'Connell, M., Verdeja, E., & M. Bailliet, C. (2024). Peace Policy: Solutions to Violent Conflict,
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February 2024
No. 56
SOLUTIONS TO VIOLENT CONFLICT Editor: Atalia Omer
Guest editor: Mary Ellen O’Connell
Lost and Found Regard for
Photo: AP Photo/Patrick Post
the Law of Peace
by Mary Ellen O’Connell
The International Court of
Photo: AP Photo/Patrick Post
Justice and Genocide
in Gaza
by Ernesto Verdeja
A Call for an International
Photo: Libertinus, Creative Commons
Solidarity
by Cecilia M. Bailliet
Peace Policy offers research-based insights, commentary, Peace Policy is edited and distributed several times a year
and solutions to the global challenge of violent conflict. by the Kroc Institute for International Peace Studies, part
Each issue features the writing of scholars and practitioners of the Keough School of Global Affairs at the University of
who work to understand the causes of violent conflict Notre Dame. The Kroc Institute is one of the world’s principal
and who seek to contribute to effective solutions and centers for the study of the causes of violent conflict and
alternatives to the use of force. strategies for sustainable peace.
Kroc Institute for International Peace Studies
peacepolicy.nd.edu
Photo: AP Photo/Patrick Post
Lost and Found Regard for the Law of Peace
by Mary Ellen O’Connell
In one of the most dramatic moments in international legal history, advocates for
South Africa argued before the International Court of Justice (ICJ) that Israel’s
resort to and conduct of war in Gaza violates the Genocide Convention.
Women and men, old and young, black, brown, and white, would prevail against the Realists. But they persisted. When
pleaded with the Court to issue emergency orders, including the Cold War ended, Realists were joined by Liberals oriented
an order to immediately cease fire. They detailed the suffering to national civil and political rights. They expanded Realism’s
in Gaza and Israel, and they warned that the “very reputation of belief in war for national security to war for human rights, arms
international law” hangs in the balance. control, counter-terrorism, the imposition of friendly govern-
The last time the world confronted such a clear warning ments, and the seizing of territory under dubious historical
about the future of international law occurred as World War II claims. If international law prohibits the use of force for these
was ending. The new Realist school of political science was purposes, Liberal interventionists argued the law can and
emerging. Its chief architect, an international law scholar and should be disregarded.
German Jewish refugee named Hans Morgenthau, began to Older, proven teaching was pushed out of universities and
teach that states—the United States, in particular—must put its government legal offices. Required courses in international
faith in military force to keep the nation secure, not the ancient law were dropped from international relations and peace and
legal principles prohibiting force or the means of peaceful conflict studies programs. Law schools offered courses in
resolution of disputes. Sir Hersch Lauterpacht, another Central human rights but not general international law. Bailliet and
European Jew, responded in a way that helped ensure the law her co-author have written that by the last quarter of the 20th
and institutions established for peace in the wake of world war century, international law scholars had “largely abandoned
2
promoting the establishment of peace as an independent, 51). Even then, the defending state may only respond if
overarching aim of international law…” In 2022, the Yale legal necessary to halt and repel the attack in a way not dispropor-
historian Samuel Moyn released his book, Humane, which tionate to the injury. When a lawful basis for resort to force
carries the subtitle, How the United States Abandoned Peace and exists, it must respect the equally ancient principles on the
Reinvented War. lawful conduct of force, including civilian immunity, neces-
These developments meant policy makers and academics lost sity, proportionality, and humanity. This law, too, is codified in
basic knowledge of how to solve acute social challenges without treaties, including the Geneva Conventions and the Genocide
using military means. Israel’s Gaza war, Sudan’s civil war, and Convention.
Russia’s Ukraine war are all evidence of failure to respect the As this brief review indicates, the right to resort to war is
law’s substance and processes for peacefully settling disputes. severely restricted. This fact may seem counterintuitive to a
When Lauterpacht defended international law in 1946, he was generation surrounded by ideas and culture extolling war. “We
speaking from his deep understanding of human nature and his have a right to defend ourselves” is a constant refrain, and it
experience of losing most of his family to the Nazi Holocaust. means today resort to major armed force. In fact, the Charter’s
He taught that international law must be “functionally oriented peaceful means of settling disputes at the international level
towards both the establishment of peace between nations and hold the true promise of human flourishing: Articles 2(3) and 33
the protection of fundamental human rights” (1946, p. 51). Today mandate the use of non-violent mechanisms—negotiation,
he would surely add the protection of the natural environment, mediation, inquiry, conciliation, arbitration, and courts. Law
which is so deeply ravaged by armed conflict and the shift of enforcement measures are always lawful. South Africa is not only
resources to fueling war machines. correctly arguing the law against the use of force, it is modeling
South Africa has taken up Lauterpacht’s insights. Its case at the the use of courts for peaceful settlement. Some ICJ judges are
ICJ educates the world in the importance of the law of peace still captives of Realism. Others, thankfully, are not—their views,
once again. South Africa underscores in its oral and written together with South Africa’s, will catalyze the recovery of
arguments that resort to force is prohibited under ancient law international law for peace. They will help us to see war as Pope
found in all cultures and codified in the United Nations Charter. Francis sees it, a “crime against humanity.”
The UN was founded to “save succeeding generations from the
O’Connell, Mary Ellen. “Lost and Found Regard for the Law of Peace.” Peace
scourge of war.” It does so by requiring in Article 1 that states Policy: Solutions to Violent Conflict, no. 56 (February 2024). https://doi.
comply with international law, in particular, the prohibition on org/10.7274/25251601
force codified in Article 2(4). The Charter’s only limits on the
prohibition are for UN Security Council authorization (Articles Mary Ellen O’Connell is the Robert and
39-42) and in self-defense when a state responds to an armed Marion Short Professor of Law and concurrent
attack occurring, launched by another sovereign state. (Article professor of international peace studies at the
University of Notre Dame.
The International Court of
Justice and Genocide in Gaza
by Ernesto Verdeja
It is difficult to predict at this stage the impact of
South Africa’s application to the International Court
of Justice (ICJ) charging Israel with genocide over its
response to Hamas’s October 7 attack and massacre.
The Court will use the United Nations or mental harm; inflicting conditions of complete or partial destruction of the
Convention on the Prevention and life calculated to bring about the group’s civilian group “as such.” Specific intent
Punishment of the Crime of Genocide physical destruction in whole or in part; sets a high bar; it is not enough simply
(UNCG) definition of genocide as the preventing births within the group; and, to establish that the actions resulted
“intent to destroy, in whole or in part, forcibly transferring children of the group in partial or complete group destruc-
a national, ethnical, racial or religious to another group. tion. It is not surprising, therefore, that
group, as such,” which lists a range of The key for proving genocide is to show genocide is harder to prove than crimes
violent acts that may qualify as that the perpetrators specifically intend, against humanity or war crimes, which
genocidal: killings; causing serious bodily through their actions, to bring about the do not require the same standard of
3
its own security, not exterminate Gazan strategies are deemed insufficient to
intentionality.
civilians. But this argument wrongly achieve particular (extremist) goals, and
Nevertheless, South Africa makes a leaders settle on a policy of total or partial
assumes that a military response to a
compelling case. It presents a range of civilian annihilation to secure their aims.
security threat and committing genocide
Israeli actions that can be genocidal in
are logically exclusive. Counterinsurgency Moreover, the treatment of international
conformity with the UNCG definition, and
campaigns have been found to have law by states is having a detrimental
it cites numerous statements by Israeli
genocidal phases when the civilian group effect. States assemble a sophisticated
political and military leaders that can be
itself is treated as the security threat, as legal interpretive apparatus to justify mass
plausibly interpreted as showing
in Guatemala in the early 1980s. We must violence and gut the law of its primary
genocidal intent (paras. 101-106). Indeed,
distinguish between motive and intent: purpose to protect civilians. This kind of
it is notable how much of the language
there may be many motives, or reasons, bad faith legal reasoning has become
by Israeli leaders collapses the distinc-
behind a military campaign – security, especially pronounced since 9/11, as
tion between Hamas fighters and Gazan
retribution, controlling land, etc. – but governments have reframed national
civilians, effectively treating the two as
what is legally dispositive is whether interest through appeals to anti-terrorism
interchangeable and both as “legitimate”
the perpetrator intends to annihilate the laws and self-serving interpretations
targets.
targeted civilian population in whole or of international humanitarian law at the
Israel says it has notified Gazans before in part, regardless of the reasons given expense of human rights.
some attacks and lets in some aid, which for doing so. Even if Israel had a right The debate among genocide scholars has
implies it is not intentionally seeking to self-defense to fight in Gaza, it does not been side-tracked by these deficits in
Gazans’ destruction. This is unpersuasive, not have the right to commit genocide. the substance and institutions of interna-
however, given that Israel has attacked The same is true respecting the rules tional law. As South Africa argued its case
designated safe zones, employs massive governing the conduct of force – on January 11 and Israel pushed back
unguided bombs in civilian areas, and has international humanitarian law – which on January 12, genocide scholars were
laid a siege driving Gazans to starvation, governs all parties to a conflict, those focused on Israel’s military campaign
an obscene collective punishment. Israel’s resorting to force lawfully or unlawfully. If and the question whether Israel was on
pattern of conduct suggests its campaign targeting a legitimate military objective is the brink of committing genocide or was
is intentionally directed toward at least done with the intent to destroy a people in already doing so well before.
partial group destruction. whole or in part, it is unlawful genocidal
conduct. Several points follow for policymakers:
Nevertheless, everything pivots on how
1) given the challenges of assessing
the ICJ interprets intentionality. The ICJ’s Proving genocidal intent, however, in genocidal intentionality in “real time,”
judgment in Bosnia vs. Serbia, states that resort to or conduct of armed force is focus instead on ending large-scale
“for a pattern of conduct to be accepted difficult under the narrow legal under- harms against civilians, rather than
as evidence [of genocidal intent], it would standing. The narrow understanding waiting for a legal genocide determi-
have to be such that it could only point is one reason why many genocide nation; 2) invest in building a regional
to the existence of such intent” (para. scholars, including me, are critical of the atrocity prevention architecture directed
373; see also Croatia vs. Serbia, paras. Convention. It does not accurately reflect at root causes and structural violence,
146-148). That is, the only reasonable how genocide unfolds. Genocide is rarely not just preventing mass killings and
interpretation of conduct must point preceded by a detailed plan with explicit displacement; and 3) publicly assert
toward genocidal intent, not other aims. extermination orders. Rather, intentionality that an ICJ ruling in favor of Israel is not
Israel argues that it is fighting to establish emerges over time, as previous an endorsement of Israel’s conduct. In
short, while the court case brings needed
attention to this ongoing crisis, a focus
on the Convention should not come at
the expense of a more comprehensive
strategy for peace and accountability.
Verdeja, Ernesto. “The International Court of Justice
and Genocide in Gaza.” Peace Policy: Solutions to
Violent Conflict, no. 56 (February 2024). https://doi.
org/10.7274/25251601
Ernesto Verdeja is an associate professor of
peace studies and global politics at the University
of Notre Dame.
Photo: AP Photo/Patrick Post 4
A Call for an International Solidarity
by Cecilia M. Bailliet
T he Universal Declaration of Human Rights, Article 1 indicates the obligation
of universal solidarity as a foundation for human rights: “All human beings
are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.”
Around the world, civil society groups component of peace is the right to need to articulate a protection framework
have expressed international solidarity in peaceful assembly which in turn enables to support International Solidarity for
marches and social media campaigns to individuals to act in solidarity with Peace initiatives based on the pillars of
call for peace, ceasefire, and others and articulate group solidarity non- discrimination, equality, and remedy.
protection of civilians in armed conflict or identity. According to the UN Human State, social media corporations, and
in the context of the war in Gaza. The Rights Committee, peaceful assembly is universities should receive guidelines on
recent significant engagement of men, to be interpreted in relation to an aim of identification of hate speech,
women, and children in the expression peace and non-discrimination: “In accor- disinformation, discrimination, and
of international solidarity is a powerful dance with article 20 of the Covenant, incitement against international solidarity
affirmation of the value of human rights as peaceful assemblies may not be used for activists.
a narrative of emancipation in response to propaganda for war (art. 20 (1)), or for International Solidarity may be
violence, oppression, and marginalization. advocacy of national, racial or religious considered an enabling right supporting
It is imperative that civil society actors not hatred that constitutes incitement to peace. Indeed, the revised Draft
be subject to reprisals for their expres- discrimination, hostility or violence (art. Declaration on International Solidarity,
sion of international solidarity for peace, 20 (2)). . . . Participation in assemblies Article 1, sets forth “International
including loss of funding, loss of whose dominant message falls within the solidarity is an expression of unity by
employment, incarceration, censorship, or scope of article 20 must be addressed which peoples and individuals enjoy the
other forms of penalization. Actions and in conformity with the requirements for benefits of a peaceful, just and equitable
expressions that promote transnational restrictions set out in articles 19 and 21.” international order, secure their human
unity, empathy, tolerance, and Repression of international solidarity with rights and ensure sustainable develop-
cooperation are the elements of a strong Palestinian and Israeli peace activists is ment.” Civil society has demonstrated
culture of international solidarity in often based on mischaracterization of that International Solidarity is constructed
support of peace and social progress. their expressions against occupation, from below and disseminated across
The most striking impact of the apartheid, calls for accountability of borders to acknowledge the right of all
contemporary expressions of international violations of international humanitarian law people to have rights. There is a clear
solidarity for peace is their embrace of and human rights (including genocide), need for the international community to
the principle of humanity—the demand to and/or anti-Zionism as promoting espouse a Global Public Policy supporting
protect life and alleviate human suffering. terrorism and/or antisemitism. Solidarity International Solidarity for Peace
The combination of the two universal marches and platforms were banned expressions and manifestations. There is
principles underscores the salience of the in Germany, France, and Austria, and a clear need for the international
articulation of an obligatory sequence of solidarity activists have been subject to community to espouse a Global Policy
exhaustion of peaceful dispute resolution surveillance, silencing via intimidation, supporting International Solidarity for
mechanisms before the use of force, in arbitrary arrest and detention, loss of Peace expressions and manifestations
accordance with Article 33 of the United employment or participation in educa- now by providing legal support, new
Nations Charter. tional institutions, violence, harassment, funding, and reinstated funding.
It may be argued that an International and prosecution in Europe and the United
Solidarity for Peace Policy would include States. The NGO Monitor announced that Bailliet, Cecilia M. “A Call for an International
procedural and substantive components it had successfully lobbied the European Solidarity.” Peace Policy: Solutions to Violent
Union to cut 22 million Euros in funding to Conflict, no. 56 (February 2024). https://doi.
that relate to the right to enjoy peace, org/10.7274/25251601
recognized in the Declaration on the Right NGOs (including Palestinian NGOs) that
to Peace, Article 1: “Everyone has the the NGO Monitor accused of being antise-
right to enjoy peace such that all human mitic and/or pro-terror. This campaign
Cecilia M. Bailliet is professor and director of
rights are promoted and protected and has severely weakened civil society
the Masters Program in Public International Law
development is fully realized.” A and promoted a narrative of fear among
at the University of Oslo
solidarity activists. There is an urgent
5
S O LU T I ONS TO V I O L EN T C O N FL I C T
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