Julius Arscott, union executive for the Ontario Public Service Employees Union (OPSEU) and member of Socialist Action, recently posted part of a blurb for support for the International Court of Justice (ICJ) ruling concerning Israel’s actions in Gaza and the West Bank from The National Union of Public and General Employees (NUPGE), the second largest public-sector union in Canada. The whole blurb reads as follows:

NUPGE welcomes ICJ ruling, urges ceasefire in Gaza

February 2, 2024 – 11:54 am

The National Union of Public and General Employees (NUPGE) joins with unions around the world in welcoming the recent order from the International Court of Justice (ICJ).

The ICJ has issued a crucial order calling on the government of Israel to prevent acts of genocide in Gaza and punish direct and public incitement to genocide. The ruling urges the immediate implementation of measures to ensure basic services and humanitarian assistance are provided to Palestinians in Gaza.

The case was brought to the ICJ by the government of South Africa, and 15 out of 17 judges ruled in favour of the measures.

As a signatory to the United Nations Genocide Convention, Israel has an obligation to comply with the provisional measures in the ICJ ruling, as do Canada and 151 other nations.

NUPGE reiterates its call for an immediate ceasefire as the devastating loss of civilians – many of them women and children – rises every day. Since the devastating attack by Hamas on Israel on October 7, 2023, which claimed 1,200 lives, over 25,000 people have been killed during combat operations by the Israel Defense Forces (IDF) in Gaza. More than a million people have been displaced, and thousands more are left injured.

NUPGE additionally calls for:

• the immediate release of all hostages;
• the Canadian government to strongly urge the government of Israel to comply with the ICJ ruling;
• the Canadian government to clearly support an immediate ceasefire preventing further loss of life and suffering, bringing an end to the conflict while calling for a political solution that allows both Israel and Palestinian citizens to live in peace and dignity.

Support against the current genocide in Gaza and the West Bank is welcome–but critical distance from such support when it fails to engage in criticism of the rule of law (domestic and international) is necessary if the radical left is to question the premises of the class power of employers.

It should not come as a surprise that NUPGE would support the ICJ ruling without qualification; it generally idealizes the law by idealizing collective bargaining and collective agreements (see Fair Contracts or Collective Agreements: The Ideological Rhetoric of Canadian Unions, Part Four: The National Union of Public and General Employees (NUPGE) (The Second Largest Union in Canada) ).

This implicit reference to international law without any further qualification assumes that, because it is the law, nations should comply with the law. Such compliance has as its counterpart the assumption in a society dominated by a class of employers that individuals should comply with the law–because it is the law. The appeal to international law to justify criticizing Israel’s actions thus contributes to reinforcing the ideology of the law as sacrosanct.

A Problem with Referring to International Law to Justify Opposing Israel’s Genocidal Actions: Strategy and Tactics

Many leftists do not even bother worrying about references to international law in order to defend Palestinians against the Israeli government’s genocidal actions. After all, should we not use all means at our disposal to defend the Palestinians?

Such a view is short-sighted and has little to do with the pursuit of a socialist strategy. Indeed, the left here in Toronto and elsewhere frequently collapse strategy and tactics, in effect advocating only tactics. This leads nowhere except the perpetuation of the problems and the constant need to resist and to struggle—without any realistic hope of resolving the conditions which constantly generate the problem. This does not mean that reforms should be thrown out of the window. It does mean, however, that activism that stays at the level of tactics will never address the more profound causes of the immediate problems.

Robert Knox (2012) addresses this problem in his article titled “Strategy and Tactics.” in pages 193-229, The Finnish Yearbook of International Law, Volume 21, writes, p. 205:

…only tactical interventions occur, which are then branded as strategic interventions, foreclosing the possibility of an actual strategic intervention.

What is the difference between strategic interventions and tactical interventions? The difference has been specified in terms of war as follows (pages 197-198):

“Carl von Clausewitz, one of the most influential exponents of modern military theory, defined strategy as:

[T]he use of the engagement to attain the object of the war … It must therefore give an aim to the whole military action. Its aim must be in accord with the object of the war. In other words, strategy develops the plan of the war, and to the aforesaid aim links the series of acts which are to lead to it; that is, it plans the separate campaigns and arranges the engagements to be fought in each of them.

Strategy is – in essence – how it is that one would fight and win a war: connecting the various individual battles together so as to achieve this broader objective. In contradistinction to this is tactics, which is concerned with smaller and shorter term matters. Tactics are concerned with how to win the individual battles and engagements of which the war is composed.

If we wish to translate this metaphor into more general terms, we might say that strategy concerns the manner in which we achieve and eventually fulfil our long term aims or objectives, whereas tactics concerns the methods through which we achieve our shorter term aims or objectives. The obvious conclusion here, and one that will be important to bear in mind throughout this article, is that when we talk of ‘pragmatism’ or ‘effectiveness’ it need not be referring to only the immediate situation. As will be explored more fully below, any tactical intervention will also have strategic consequences. This means that when thinking about effectiveness, it is necessary to understand the inherent relation between strategy and tactics. In so doing, the distinction allows us to consider how effective particular (seemingly ‘short term’) interventions might be in the longer term.

The Content of International Law May, in Some Circumstances, Be Usefully Used

How does the issue strategy and tactics relate to international law? We can, under some circumstances, use the international law in terms of its content, but we also need to make clear that this use is due to the exceptional circumstances and that international law in terms of its form not only limits what can be achieved but can easily reinforce the political and economic structures of power.

China Mieville, in his book Between Equal Rights: A Marxist Theory of International Law, emphasises that the law, because of its formal nature of theoretically treating everyone as a legal, isolated subject with, in general, equal rights that are enforceable if one of the parties decides to breach the formal rights of others, has as one of its background conditions the use of force or coercion to ensure that such rights are respected. Law, rights and obligations thus necessarily involve some form of coercive agent to enforce the law, rights and obligations.

But what happens when the so-called equal legal subjects formally are in fact unequal in terms of their actual social and material power?

Robert Knox (2009), in his article “Marxism, International Law, and Political Strategy,” in pages 413-436, Leiden Journal of International Law, Volume 22 (2009), page 417, addresses this issue:

In order to resolve this question Mieville analyses the relationship between law and coercion… although it posits individuals as formally equal, these individuals have radically opposed interests. These opposed interests can only be resolved through violence, which means that the possibility of violent resolution is inherent. … Once it is acknowledged that international law has a deep structural connection withv iolence, the solution …
is that – in Marx’s words (from which Mieville takes the title of his book) – ‘between
equal rights force decides’.

Mieville, however, according to Knox, limits his definition of coercion to military coercion. He also assumes that the only actors on the international stage are nations. Knox argues against both assumptions.

There is force through arms–military coercion at the international level and police coercion at the national level (although the military may of course be used internally as well). However, Knox also points out that there is economic coercion and ideological coercion. International actors may also be organized workers across borders and not just nation-states or governments. Page 428:

First, progressive forces often wield a great deal of economic power internal to the bourgeois state (and internationally). It is possible to imagine a situation in which a pattern of economic ‘sabotage’, strikes, and so on by these actors could force a state to adopt a particular ‘interpretation’ of the law.

Forcing governments or nation-states to act in such a way that they appear to be acting legitimately could also be conceived as ideological force or coercion. Page 428:

Second, there is the argument that a concern with legitimacy and consistency might be manifested on the part of those interpreting the law. This position is perhaps best exemplified with the oft-quoted position advocated by E. P. Thompson in his Whigs and Hunters:

If the law is evidently partial and unjust, then it will mask nothing, legitimise nothing,
contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just.

… Thus it may be that a particular interpretation of the law will not be taken, because it obviously favours a particular class interest, or is inconsistent with a stated ideological justification for a given course of action. It may be that in instances where such an interpretation is put forward, progressive social forces are able to seize on such inconsistency and mount an immanent critique of the interpretation. In response to such action, or in order to avoid it, forcemay ‘decide’ in a manner consistent with the wishes of progressive forces.

The Dangers of the Form of International Law for the Radical Left

The above characterization of the possibility of using international law for socialist ends needs to be severely qualified when we consider the form of law, including international law. The form of law itself influences the content of law, or what it is. Law is both too abstract and too specific. In relation to being too abstract, Knox has this to say. Page 430:

The problems with which progressives are confronted – poverty, war, disease – do not simply just ‘happen’, they are manifestations of ‘background’, structural factors – be they political, economic, or ideological; ‘“moment[s]” in a larger structure of meaning that can be known, analyzed, and potentially defeated’. But legal argument is both too abstract and at the same time too specific to deal effectively with these problems. Legal argument frames its participants as abstract, self-contained individuals; as such it treats their actions, rather than the reasons for these actions, as decisive. Moreover, these actions become relevant only inasmuch as they form the content of a dispute or violation of the law. Legal argument therefore resolves the particular disputes of abstract individuals without ever touching on the logics which shape and condition their actions, and in this sense it is too abstract.

Law is also too specific in that its form of resolving problems often limits its applicability to very specific disputes. Page 430-431:

Although legal argument may be able to deal with effects, it proves incapable of dealing with causes; this is where legal argument proves too specific. Legal argument resolves specific ‘violations’, ‘disputes’, or ‘instances’, but it never questions the general structural logics that lurk beneath them, and so cannot fully eradicate the problems it addresses. This is not to say that those who adopt legal argument are unaware of the systemic logics that underlie particular actions, simply that in adopting a legal strategy they act as if they were unaware of such logics and so cannot address them.

By Way of Conclusion: What Is To Be Done?

Knox proposes a solution to this problem of the possible incorporation of struggles around international law in terms of content into the legal form, thereby limiting such struggles to the existing economic, political and social structures rather than going beyond them: principled opportunism. Page 433:

3.1.1. Conclusion: principled opportunism

The above analysis suggests a two-pronged strategy for the progressive use of international law. Thec ontent of international law is contestable byprogressive non-state
actors. Utilizing their economic, ideological, and sometimes coercive power these
groupsmay be able to turn the content of international law to their own ends, either
by constituting themselves as formal actors in the international sphere or by forcing
particular states to adopt an interpretation that favours their interests. …

However, the transformative power of this struggle is limited by the legal form. By virtue of the ‘shape’ of this form, legal strategy cannot address the social structures that give rise to the world’s problems. This indicates that the best route for international lawyers is to engage in ‘concrete forms of political commitment’, abandoning any utopian hopes of the law’s role in social transformation. International law might be used ‘defensively’ – perhaps invoking it in a national trial to defend otherwise criminal actions. Equally, it could be used offensively, for example in attempting to secure the trial of war criminals, which would also help to publicize the ‘truth’ of a particular situation.

Knox warns that there are risks of such a strategy, and radical leftists need to be aware of them. Page 433:

Even with such amodest strategy there are real risks. The shape of the legal form means that pursuing a legal strategy can break up collective solidarity, and renders progressive forces unable to address the systemic causes of social problems. Indeed, to mount a legal strategy is to risk legitimating the structures of global capitalism. Thus what needs to be articulated is a strategy which is able to take advantage of the possible progressive content of the law, whilst avoiding the problems of the legal form. International law, then, must never be pursued because it ‘is law’, but only insofar as its content can advance the aims of progressive constituencies. What must be pursued is a ‘principled opportunism’, where – in order to undercut the individualizing, legitimating perspective of law – international law is consciously used as amere tool, to be discarded when not useful. …

The strategic question of international law’s progressive potential is – as a matter of
principle – reduced to the tactical, instrumental deployment of legal argument.

Principled opportunism may, under specific conditions, give way to a greater focus and importance to law and legal argument, but unlike the idealization of international law characteristic of social democrats and social reformists, principled opportunism should be the default line for radical leftists. Page 435:

Of course, this brings with it its own problems, as, rather than consciously avoiding the legal character of a demand, it seeks to embrace it. What this suggests is a two-track strategy, where in normal circumstances ‘principled opportunism’ is pursued but in extraordinary circumstances ‘legality’ once again becomes important. Even in these extraordinary circumstances there would always be a ‘conscious’ element, those who have engaged in principled opportunism, who remain ‘aware’ of the limits of legality.