The Slowdown in Enforcing International Law

International law has helped govern the behavior of states for hundreds of years. Early principles like the prohibition on poisoning wells (rooted in just war theory) and the inviolability of diplomatic delegations can be traced back to ancient civilizations and medieval treaties such as the Peace of Westphalia in 1648 that ended the thirty-year war in Europe. Yet it was only after the two World Wars in the twentieth century that the substance and processes of international law expanded markedly.

The United Nations Security Council—where the five permanent members have veto power over enforcement mechanisms of international law—is well known. But there is a broader “architecture of enforcement,” encompassing entities like the International Court of Justice (ICJ), the International Criminal Court (ICC), and regional courts like the European Court of Human Rights and the African Court of Human and People’s Rights. Individual states as well as nongovernmental bodies also have a specific role in ensuring compliance with international law and bringing sanctions to bear on its violators. It is important to understand these tools in light of the apparent impunity felt by certain powerful actors, like Israel, who are violating international law, and in light of the despair of many victims who feel helpless in the face of these violations.

Codifying International law

Following the Second World War, and under significant pressure from governments and non-governmental actors, international law became more codified and explicit. The General Assembly of the United Nations unanimously passed the Universal Declaration of Human Rights in 1948 to serve as a foundational document for subsequent human rights treaties. Several important conventions came into being afterward, including the Geneva Conventions of 1949 that set rules for the treatment of civilians, wounded soldiers, and prisoners of war; the Convention on the Prevention and Punishment of the Crime of Genocide in 1948; the Convention on the Elimination of All Forms of Racial Discrimination in 1965; and the Convention against Torture in 1984, among others.

The General Assembly of the United Nations unanimously passed the Universal Declaration of Human Rights in 1948 to serve as a foundational document for subsequent human rights treaties.

Typically, protocols containing detailed procedures for monitoring, reporting, and sanctioning violations have followed such conventions. For instance, the Optional Protocol to the Convention against Torture established the Subcommittee on Prevention, which has the authority to visit detention facilities worldwide.

Once the required number of nations (usually a two-thirds majority) have signed a convention and the protocols, these go into effect. The International Committee of the Red Cross maintains a comprehensive database of conventions, protocols, and ratifications, noting the dates they entered into force and any reservations or derogations by individual states. For example, some Islamic countries have entered reservations to conventions on women’s and children’s rights where the conventions’ provisions conflict with their interpretation of Islamic law.

The role of national governments is crucial. A number of countries explicitly incorporated such conventions into their national laws, while others implicitly refer to them. During President Jimmy Carter’s tenure, the United States made human rights worldwide a major platform of its foreign policy, including through the congressional requirement for the Department of State to prepare annual reports on the status of human rights practices in every UN member state.

Of course, however, American commitment to international law has been inconsistent. For example, while the United States championed the creation of the United Nations, it has resisted certain international frameworks, refused to ratify the Rome Statute of the ICC, and instituted measures to punish some governments that signed the statute. On the other hand, Australia and New Zealand have required that Israeli visa applicants fill out a questionnaire about their military service to ascertain whether soldiers have committed human rights abuses and war crimes. As a result of the policy, the former has denied entry to two Israelis based on their record while the latter has rejected the entry of one.

In addition to codifying the substance of international law, the post-World War II period saw the development of numerous international and regional organizations to monitor and enforce compliance with international law. Within the UN system, more than 40 specialized agencies exist, including the United Nations Educational, Scientific, and Cultural organization—which promotes cultural and educational rights; the United Nations Children’s Fund—which advocates for the rights of children worldwide; and the World Health Organization—which helps to protect global public health.

In addition to codifying the substance of international law, the post-World War II period saw the development of numerous international and regional organizations to monitor and enforce compliance with international law.

Regional organizations such as the Organization of American States and the African Union also developed mechanisms for cooperation and accountability. The Inter-American Court of Human Rights, for example, has issued binding judgments against member states, leading to important policy reforms.

Still, the process of development of international law and organizations was uneven, fragmented, and subject to political pressures including through geopolitics. Yet at least in its public pronouncements and positions, the international community paid lip service to international law and accepted it. Apparent violations were denied outright and carried out in the dark or sheepishly justified under a variety of excuses.

The Slowdown of Implementing International Law

But in recent years, the process of expansion and development of international law has slowed down. The United States, which once led the process, now seems to be deliberately opposing it. During his first term in office, President Donald Trump emphasized the “America First” principle in his foreign policy which often included an open disrespect for the principles of international law that, to him, negatively impacted American interests.

His general disregard for international law was on full display in his administration’s handling of Middle East issues and bias in favor of Israel’s interest. He recognized Jerusalem as Israel’s capital and moved the American embassy there; accepted Israel’s sovereignty over the illegally occupied Syrian Golan Heights; and recognized Morocco’s sovereignty over the Western Sahara, apparently as a reward to the kingdom for normalizing relations with Israel. Now that he has returned to the White House, this attitude of disdain toward international law seems to also cover other aspects of his foreign policy, as he talks of annexing Greenland and the Panama Canal and suggests the idea of making Canada the fifty-first state of the United States. Twice did Trump withdraw the United States from the Paris Climate Agreement, once during his first term and recently after he started his second presidency, when he issued an executive order rescinding President Joe Biden’s decision in 2021 to rejoin the accord.

Twice did Trump withdraw the United States from the Paris Climate Agreement, once during his first term and recently after he started his second presidency, when he issued an executive order rescinding President Joe Biden’s decision in 2021 to rejoin the accord.

This attitude of disrespect for international law is also evident in Congress’s animosity toward the ICC. Recently, the House of Representatives passed a law to punish and sanction the ICC and any entity that supports bringing Israeli Prime Minister Benjamin Netanyahu, or other Israelis, to justice before that court. But luckily the US Senate has refused to pass similar legislation to sanction the court.

The example of the United States points to an integral feature of international law—that it can only function effectively if states actively participate in implementing and enforcing it. This feature is bolstered by the nature of international institutions that depend on the voluntary participation of nation-states. The Statute that created the ICC itself specifically proclaims that the court’s jurisdiction is “complimentary” to that of the nation-states, and expressly allows the court to take cases only when national judicial bodies “are unable or unwilling” to deal with the crimes that fall under its jurisdiction.

To take another example, the Geneva Conventions state that each signatory state has the duty to “ensure compliance” with their provisions. This means that third parties in the Israeli-Palestinian conflict other than Israel and the Palestinians have a duty and an obligation to ensure compliance with the Conventions, and failing to do so would render such parties guilty of violating the Conventions themselves. The same stipulation and obligation are found in the language of decisions by the International Court of Justice, such as that in 2004 regarding Israel’s construction of a wall in the occupied Palestinian territories. In that case, the court specifically proclaimed that all states that ratified the ICJ statute have an obligation to see its decision carried through and to take up specific actions on the basis of said decision.

Instead of waiting for the ICC or the ICJ to deal with international crimes like geocide and apartheid, activists can also consider lobbying individual states to take up specific actions of enforcement.

This opens the door to a wide-ranging array of activism in the service of implementing and enforcing international law. Instead of waiting for the ICC or the ICJ to deal with international crimes like geocide and apartheid, activists can also consider lobbying individual states to take up specific actions of enforcement. They can also apply for redress to the national courts of the different states to seek implementation of provisions of international law in specific cases. Here are two examples of such activism:

  1. Canadian activists have succeeded in requiring the Canadian Tax authorities to rescind the tax exemption of the Jewish National Fund in Canada, which has been channeling millions of dollars in “charitable donations” to be used by settlers in carrying out settlement activities in the occupied West Bank. Another case that demands the suspension of arms sales to Israelin light of its genocidal actions in Gaza is still pending.
  2. The Hind Rajab Foundationin Belgium has actively sought warrants against a number of Israeli soldiers and officials in several countries for war crimes and participation in the genocide in Gaza on the basis of their own reports on social media where they had filmed themselves and boasted about their criminal actions in Gaza. Cases were filed in Brazil and other countries where these Israelis were traveling on vacation.

To be sure, international law continues to govern the behavior of states despite the skepticism brought about by the impunity of certain countries, specifically Israel. Enforcing its provisions, however, requires the active involvement of nations and states. Where states fail to carry out their obligations, individuals and nongovernmental organizations must collect evidence, lobby their governments, and find creative ways to make sure the world is governed by law rather than by jungle behavior in which the powerful have their way with total impunity.

The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors. 

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