Gaza could change everything. The War on Terror faces international justice.

Which is why the ICC seeking Netanyahu’s arrest has triggered something approaching a nervous breakdown, a shattering of the psyche for the Western elites. Impunity is in the job description.

Josep Borrell, the EU’s foreign policy chief, told Deutsche Welle this week that some European countries had been trying to intimidate the International Court of Justice following its decision, under the Genocide Convention, to order Israel to halt its onslaught on Rafah, Gaza.

He said the court’s ruling poses a dilemma for the EU.

“We will have to choose between our support of international institutions and the rule of law – or our support to Israel.”  Borrell said. Ponder those words and, depending on the choice, where they lead.

Could the US and Europe be on the cusp of walking away from the decades-long charade that they stand for justice, law and order?

Which gets to the next Gordian dilemma that is impossible to cut through: terrorism.

US war theory lies in mangled ruins
Like the Twin Towers that came tumbling down in 2001, the architectural framing of the American theory of war now lies in mangled ruins.  After Gaza, where is the Global War on Terror, launched by George W Bush, and supported by countries like Australia and New Zealand to this very day?

It was based on the argument that while terrorists like Al Qaeda deliberately kill innocents, America and its allies deliver justice. In response to the charge that America, or Israel or the UK have killed countless more innocents than any “terrorist” organisation, the answer always came back: but we never meant to . . .  our intentions were noble, they just died as a result of collateral damage, unforeseen or unintended consequences, or that hoary old chestnut: the lesser of two evils.

On the death of hundreds of thousands of Iraqi children as a result of US sanctions, Secretary of State Madeleine Albright sighed: “This is a very hard choice but we think the price is worth it.” Israel trots out the same argument in respect to incinerating men, women and children in Gaza.

This is the Doctrine of Double Effect — which goes all the way back to St. Thomas Aquinas.  It argues that there is a moral difference between consequences that you intend and those that you merely foresee.

“The moral basis of the distinction evaporates as consequences become ever more horrific and approach certainty,” says Ramon Das, senior lecturer in moral and political philosophy at Victoria University of Wellington.

“Consider a pilot who drops a hydrogen bomb on a city. Afterwards, he claims that although he foresaw that he would kill the city’s inhabitants, his intention was merely to destroy a weapons factory. We would not be impressed.

“Yet when we consider Israel’s indiscriminate bombing and medieval-like siege of Gaza, its claim that it does not intentionally target civilians has about as much moral credibility as the hydrogen bomb pilot.”

Volumes of evidence
Enter the ICC and ICJ: volumes of evidence have been presented that Israel’s military and civilian leaders deliberately targeted civilians, aid workers, journalists and civilian infrastructure, and that Israel is using starvation as an instrument of war. The US — the Arsenal of Genocide — is fully aware of this, yet has continued to send billions of dollars of bombs and other instruments of death to continue both the slaughter and the destruction of everything necessary to sustain social, economic, political and physical existence.

It calculates it can get away with mass murder — until now a pretty safe bet.

John V Whitbeck, a Paris-based lawyer who has spent much of his distinguished career on Middle East issues, has written that “the poor, the weak and the oppressed rarely complain about ‘terrorism’. The rich, the strong and the oppressors constantly do.

“While most of mankind has more reason to fear the high-technology violence of the strong than the low-technology violence of the weak, the fundamental mind-trick employed by the abusers of the word ‘terrorism’ is essentially this: The low-technology violence of the weak is such an abomination that there are no limits on the high-technology violence of the strong that can be deployed against it.”

Have we now come to an epoch-making tipping point? The recent actions by the International Court of Justice and the International Criminal Court could shatter the Shield of Impunity – the idea that international institutions are there as tools for the West to attack their enemies and can never be used against the US and its allies.  Until the past week the ICC was considered by many progressives as the International Caucasian Court; the idea that the Prime Minister of Israel could have an arrest warrant issued against him broke the unspoken rule that the court was there to pursue Africans and Slavs.

I think this is a clarifying moment for all of us.  We will be forced to confront our real values — a bit like Josep Borrell.  Will deep attachment to American power and white supremacy trump our belief in the rule of law, of justice for all?

If we think a British foreign secretary, or an EU president or even the US president himself is above the law, we really are back to what Thrasymachus argued when he wrangled with Socrates thousands of years ago:  Justice is a scam — an elaborate set of rules, conjured up by the powerful to control the weak.

This was certainly the conclusion Nelson Mandela made when he formed Umkhonto We Sizwe, the Spear of the Nation — the ANC’s military wing — in the wake of the Sharpeville massacre by police in 1960.  It was certainly the conclusion Hamas came to after the West ignored countless massacres and land thefts against the Palestinians.

Is international law a scam?  Make up your own mind.

Eugene Doyle is a Wellington-based writer and community activist who publishes the Solidarity website. His first demonstration was at the age of 12 against the Vietnam War. This article was first published at Solidarity.