Barrie Sander joins JiC for this four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs. Click here for part one and here for part two.

Part Three – Framing and Structural Bias

What stories can international lawyers usefully tell when confronted with situations of ongoing mass violence? This is the question at the centre of this blog series, which is concerned with exploring the narrative dimensions of international law within the specific context of the current situation in Israel and Palestine. In my previous post, I began by considering the significance of analogies and comparisons – whether for learning lessons from the past or for setting expectations concerning the emancipatory potential and limits of particular fields of international law. 

In this post, I consider a different narrative dimension of international law – framing and structural bias. When international lawyers look at the Israel-Palestine situation, what do they see?  Reflecting on debates and disagreements amongst international lawyers in the weeks following the attacks of 7 October, Vivek Bhatt observed how the partiality of international lawyers ‘to legally selective stories in moments of crisis reveals just how closely the legal, the political, and the personal are intertwined’. Rather than an invisible college, international lawyers may be better understood as constituting a ‘divisible college’, encompassing a diversity of perspectives, traditions, and positionalities. Importantly, whenever international lawyers examine a particular crisis, it is through acts of framing that certain aspects of the situation are rendered visible and prominent, while others are marginalised and excluded.  

Borrowing from Jorge Viñuales’ work on legal inquiry, techniques of framing may be understood from two perspectives. First, the ability to set the scale from which a situation is viewed – zooming in to capture particular incidents or zooming out to capture the broader context. Second, the ability to select the criteria for highlighting certain features at a given scale – the criteria of international human rights law and international humanitarian law, for example, tend to direct attention towards different, albeit at times overlapping, dimensions of a situation. It is in this way that we may speak of a certain politics of framing that can have a significant bearing on the way a situation is understood and subsequently treated. 

Importantly, the scale and criteria relied upon within particular fields of international law and their attendant institutions, while always open to contestation, over time come to reflect a certain structural bias. This is understood as ‘the way in which patterns of fixed preference are formed and operate inside international institutions’. As Martti Koskenniemi explains, even if it is possible to support and contest many kinds of practices through the use of professional argument, legal institutions still prefer ‘de facto some outcomes or distributive choices to other outcomes or distributive choices’ and come to serve ‘typical, deeply embedded preferences’. As such, when reflecting on the emancipatory potential of particular vocabularies and institutions of international law, identifying their structural bias can help define what may be expected of them in practice and what may need to be challenged.

By way of illustration, examining a crisis situation through the prism of international criminal law (ICL) and its accompanying international institutions tends to foreground particular forms of violence, actors, and geographies to the marginalisation and exclusion of others in ways that may be significant when applied to the situation in Israel-Palestine. 

In terms of violence, international criminal courts focus primarily on spectacular harms – foregrounding a narrow set of highly visible and shocking displays of physical, direct, and immediate forms of violence, which constitute the ‘dominant aesthetic’ of ICL. The images, videos, and reports emerging from Hamas’ horrifying attacks in Israel, as well as Israel’s devastating campaign of destruction in Gaza and escalation of violence in the West Bank, constitute precisely the types of spectacular harms that the vocabulary of ICL has proven most comfortable addressing. Yet, as Zinaida Miller recently emphasised, it is important not to lose sight of slower forms of violence whether in the form of the everyday subordination of Israeli occupationor the prospect of almost a quarter of Gaza’s population dying within a year from preventable health causes and the collapse of the medical system. As Miller observes, ‘In Gaza today, these two forms of violence, spectacular and slow, are conjoined’. 

Significantly, ICL includes categories such as the crime against humanity of apartheid under Article 7(1)(j) of the ICC Statute, which offer the potential to address certain forms of slower violence. Scholars and activists have also explored how ICL categories more generally might be directed towards addressing forms of violence that are ‘potentially replicated, normalised and perceived as an acceptable, or at least inevitable, consequence of the current international system’. To date, however, such harms have not tended to form the focus of international investigations or prosecutions.

With respect to actors, international criminal courts focus on individuals, which ICL understands as the primary unit of responsibility and punishment. Calling individuals to answer for their participation in mass atrocities is important – whether the acts of rape, mutilation and extreme brutality by members of Hamas or the incitement to genocide by public figures in Israel. Yet, as Natasa Mavronicola and Mattia Pinto explain, there is a risk that individualising responsibility ‘narrows the focus to individual incidents, individual victims, and individual perpetrators, and overlooks the institutions, systems, and structures that enable and sustain violence and oppression’ with the result that particular atrocities may be viewed as ‘aberrations from the “norm” or as the work of a “few bad apples”’. 

At times, this risk of exceptionalisation may result not from the language of ICL itself, but from the scale at which it is deployed in practice – the documentation of discrete violations obscuring the criminality of broader policies giving rise to those harms. This was recently illustrated by the ICC Prosecutor’s statement calling out Israeli settler violence against Palestinian civilians in the West Bank without mentioning the role of Israeli State policy in both enabling those attacks and creating Israeli settlements in the Palestinian territory – even though the OTP has previously found a reasonable basis to believe that Israeli authorities had committed war crimes under Article 8(2)(b)(viii) of the ICC Statute in relation to the transfer of Israeli civilians into the West Bank.

Importantly, ICL is not completely decontextualised. Through the contextual elements of international crime, categories, and the collective elements of modes of participation doctrines, ICL enables exploration of the broader institutional dynamics within which individuals operate. In addition, ICL need not be relied upon in isolation, and could be viewed more modestly as offering one discussive entry point that may spark broader critical scrutiny of the systems and structures that enable atrocities. However, if accountability comes to be primarily associated with criminal prosecution, the risk arises that the narrow focus on individual responsibility may do more to obscure than address the structural and systemic dimensions of mass violence.

Finally, in terms of geographies, international criminal courts tend to direct their attention towards local apparatuses of power rather than broader international networks. Scrutinising the international dimensions of the Israel-Palestine situation are crucial both for understanding it and moving towards its resolution. In this regard, the international community should be called to answer both for its inaction and action. In terms of inaction, Itamar Mann has observed how ‘foreign governments… were happy to look away as long as dehumanization did not burst into the kind of spectacular violence we have seen since October 7’. US President Joe Biden is even reported to have ordered his foreign policy staff to ‘keep the Middle East off my desk’. In terms of action, most immediately a range of State and business actors continue to export weapons to Israel despite the clear risk of their being used in the atrocities against civilians in Gaza. 

The vocabulary of ICL likewise has relatively little to say about bystanders to atrocities (whether international or local), while rarely have international prosecutors scrutinised the international economic dimensions of mass violence, including the provision of weapons and other resources by State and business actors that help fuel atrocities. And although calls have been made to expand the frame of international prosecutorial strategies to address these more decentralised dimensions of international criminality, only before domestic courts have the wheels of justice recently begun to turn in that direction with as yet uncertain results.

Reflecting on these observations, it is important to emphasise that ICL is of course only one frame amongst many within the field of international law, and it is possible to examine any given situation through multiple, overlapping, vocabularies. What the examination of ICL reveals, however, is that any prioritisation of a particular idiom of international law is not neutral, but a political act of framing – a choice that is ‘likely to highlight some solutions, some actors, some interests… [and] render some aspect of the carriage visible, while pushing other aspects into the background’. And any engagement with particular idioms of international law will inevitably ‘open the door for applying the expertise related to that idiom, together with the attendant structural bias’.

Importantly, structural bias is not, in itself, controversial. Rather, as Koskenniemi suggests, it is only ‘when the bias works in favour of those who are privileged, against the disenfranchised… [that] the bias itself becomes “part of the problem”’. In this vein, a recurrent theme within critical scholarship has been to identify structural biases and to question ‘how is it that certain communities always draw the short straw when it comes to the allocation and exercise of power and resources’.

Applied to the Israel-Palestine situation, reflecting on the politics of framing and revealing structural bias within different fields and institutions of international law is important. It serves as a prologue either to challenging those embedded preferences (for example, by striving to direct the focus of ICL institutions towards slower forms of violence and the international dimensions of atrocity situations) and/or to resisting particular vocabularies from dominating the crisis response conversation (for example, ICL and its prioritisation of individualised criminal responsibility).