If Harris Believes in International Law, She Needs to Show It

U.S. President Joe Biden frequently speaks of the global contest between autocracy and democracy, but Vice President Kamala Harris prefers discussing the need to promote a “rules-based order.” If the topic of foreign policy arises at the Sept. 10 presidential debate, viewers are likely to hear about it.

People close to Harris attribute this inclination to her prosecutorial past—she appreciates the importance of rules—and to the inconvenient fact that so many U.S. allies are autocrats. But the shift in terminology won’t allow her to dodge the hypocrisy at the heart of U.S. foreign policy. Nothing crystallizes that dilemma more than Israel’s conduct in Gaza—and Washington’s ongoing and largely unconditional military support to the government of Prime Minister Benjamin Netanyahu.

A growing number of Western governments have chosen a different path. Italy, Spain, Canada, Belgium, the Netherlands, and most recently the new British government have limited at least some arms sales to Israel because of its bombing and starving of Palestinian civilians in Gaza.

Biden is right to worry about the autocratic challenge to democracy. The Chinese government of Xi Jinping is trying to dumb down human rights law to require only economic growth; “social stability” (often achieved through repression); and a vague, manipulable “happy life.” Designed to curb condemnation of Beijing’s authoritarian rule, this redefinition—if widely endorsed—would eviscerate the human rights that are essential to democracy.

Russian President Vladimir Putin’s approach is different. On the one hand, the Kremlin promotes so-called “traditional values,” a backward-looking social conservatism that allows no place for the rights of LGBTQ people and would consign many women to the home. On the other hand, Russian propagandists try to undermine the fact-based discourse needed to enforce rights standards. As Russian forces attack civilians in Ukraine, the Kremlin denies and spins. Russians who present the truth are imprisoned.

Yet Biden has met these challenges to democracy by building alliances that include autocrats. Once treated as a pariah after the Saudi Arabian government’s murder of Washington Post columnist Jamal Khashoggi in 2019, the Saudi crown prince is now courted to pump more oil and normalize relations with Israel. Egyptian President Abdel Fattah al-Sisi has imposed the worst repression in Egypt’s modern history, but he is a key U.S. partner in addressing the humanitarian disaster in Gaza. Indian Prime Minister Narendra Modi has crushed dissent and fomented violence and discrimination against Muslims, but he is a central player in Biden’s alliance against China.

Many governments, seeing this hypocrisy, choose to stay on the sidelines. If the United States’ opposition to autocracy is so unprincipled, then why shouldn’t other governments also be selective, allowing themselves to be bought off by Chinese loans or Russian arms?

But touting the “rules-based order” as an alternative framework also presents dilemmas for U.S. policy. Harris seems to emphasize respect for sovereignty—which is defined by rules such as “don’t invade your neighbor”—as well as the standards needed for global trade and investment, but that is hardly the limit of international law. The rules-based order also includes international human rights and humanitarian law. And as any prosecutor knows, a law-abiding person cannot pick and choose the laws to be respected.

Of course, autocrats flout international human rights law. They dedicate themselves to preventing citizens from asserting their rights to challenge their reigns. But some democracies also violate international humanitarian law on the conduct of war—and Israel has been doing just that for nearly one year. Although Hamas’s atrocities on Oct. 7, 2023, and its ongoing detention of hostages are clear war crimes, a basic premise of international humanitarian law is that war crimes committed by one side never justify war crimes by the other.

As Harris herself has noted, Israel’s right to defend itself does not exempt it from the rules for how war must be fought—such as the Geneva Conventions and their later added protocols.

The Israeli military’s conduct of the war in Gaza has been replete with alleged war crimes, from reports of Israel indiscriminately bombing Palestinian civilians to accusations of starving them. The International Criminal Court prosecutor has charged Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for the starvation strategy, with more charges likely to follow, and the International Court of Justice ordered Israel in January to end its partial obstruction of food and other necessities.

U.S. domestic law that supports those international standards is also part of the “rules.” These days, most discussions of legal limits on U.S. military aid and arms sales apply the Leahy Law, which prohibits U.S. assistance to any unit of a “foreign security force” that is committing gross violations of human rights. But that is a modest requirement compared to the far broader Section 502B of the Foreign Assistance Act of 1961, which remains valid and provides that “no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.”

The Leahy Law was adopted in 1997 to allow a more incremental approach to military aid, but it turned out that it is often difficult to prove which particular unit is responsible for a military’s abuses, and addressing a single unit falls far short of ending a military’s broader abuses. The State Department briefly considered but decided against halting aid to four Israeli units that had allegedly been abusive against Palestinians in the occupied West Bank, ostensibly because Israel had taken remedial measures, but Israel’s overall conduct in Gaza clearly fails the broader test.

It is also a violation of international criminal law to arm a systematically abusive force. After receiving a conviction in 2012 by an internationally backed tribunal, former Liberian President Charles Taylor is serving a 50-year sentence in a British prison for aiding and abetting war crimes carried out by a rebel force in neighboring Sierra Leone. No one expects the International Criminal Court to charge Biden for aiding and abetting Israeli war crimes, but the fact that it could underscores the seriousness of today’s unconditional arms flow to Israel.

Harris could signal a different approach from Biden’s by stating her determination to avoid U.S. complicity in Israeli war crimes.

The United Kingdom’s new prime minister, Keir Starmer—himself a former prosecutor—announced this month that Britain would suspend the sale of certain arms that Israel could use in Gaza after a Foreign Office review found a “clear risk” that British arms may be used in violation of humanitarian law, but the Biden administration has largely ignored that law.

Washington did suspend the shipment of the huge, 2,000-pound bombs that Israel was using to decimate neighborhoods in Gaza but has otherwise allowed arms and billions in military aid to flow unimpeded. The White House occasionally mouths appropriate warnings—urging Netanyahu to stop bombing and starving Palestinian civilians and to agree to a cease-fire—but because the U.S. government imposes no consequences for ignoring these warnings, Netanyahu pays little heed.

The world sees this double standard. Indeed, given the massive suffering and loss of life in Gaza, the outrage at Israel’s exemption from the so-called rules-based order is probably greater than the discontent over the various autocratic exceptions to Biden’s promotion of democracy.

While Harris is vice president, there are practical limits to her ability to break publicly with Biden’s policies, but that shouldn’t stop her from discussing how, as president, her approach would differ. There is also undoubtedly an element of electoral calculation in her caution, even though there is growing disquiet at Washington’s ongoing support for Israeli war crimes among key Democratic constituencies, including swing state Michigan’s large Arab American population.

Beginning with tonight’s debate against the Republican nominee, former President Donald Trump, Harris should explain where she stands. Just as a prosecutor shouldn’t close her eyes to serious crimes, a president shouldn’t ignore major breaches of the “rules-based order.”