Weak states that ignore his directives are called pariahs or rogues; strong states that do so are called hegemons.
Afrasianet - Author: Linda Kinstler - A growing number of scholars and lawyers are losing faith in the current system, while others say it is not the law that is responsible, but the states that are supposed to maintain it.
The British newspaper "The Guardian" A report on the crisis of the decline in the effectiveness of international law. Through multiple examples such as the Kashmir crisis, the Palestinian issue, and the war on Gaza, the text highlights how international legal institutions, such as the International Court of Justice and the International Criminal Court, have become unable to impose their rulings or deliver justice, especially in the face of major powers that refuse to submit to them.
Below is the text of the article translated into Arabic:
In late April, terrorists killed 26 civilians in the Indian town of Pahalgam, in the mountainous border region of Kashmir. India quickly blamed Pakistan for the attack, launched missile strikes on it, and announced the suspension of the Indus River Water Treaty, effectively threatening to cut off three-quarters of Pakistan's water supply.
Ahmad Irfan Aslam, a veteran international lawyer who until last year was Pakistan's Minister of Law, Justice, Water, Natural Resources, Climate Change and Investments, was following the news with apprehension. India has raised the prospect of cutting off water for 250 million people. This is a flagrant violation not only of the Treaty, but also of international laws on the equitable use of water resources. Colleagues and friends went to Aslam for guidance on what could be done. "I realized frighteningly that there isn't much that can be done today," he told me. We have seen a sudden erosion of multilateral institutions and institutional norms. Everything seems vague." Even if Pakistan were to file a complaint with one of the institutions established to settle disputes between States, such as the Security Council, the United Nations General Assembly, the International Court of Justice or the Permanent Court of Arbitration, the decision that would result from such a complaint would likely not be respected. "International law has always relied on the goodwill of nation-states. But that goodwill has evaporated."
In 2024, Aslam faced a similar sense of concern in The Hague, where he appeared before Pakistan before the International Court of Justice, in a lawsuit related to Israel's ongoing occupation of Palestinian land in the West Bank. "The Israeli occupation is illegal, and its illegality must have consequences," he told the court. Fifty-two countries participated in these sessions, and when Aslam spoke to a number of his colleagues, "there was a strong realization that all of this would not change anything on the ground." What they told the judges may be important to future historians, but their words will not contribute to preventing the direct suffering of Palestinians. He added: "Whatever court you turn to, you won't get justice. Civilians are trapped in this geopolitical network that is not of their own making."
Over the past decade, key institutions supporting the international system have been weakened, paralyzed, or compromised. The recent U.S. withdrawal from a wide range of international organizations and conventions, including the Paris climate agreement, the World Health Organization, and the United Nations Human Rights Council, has further damaged the system. U.S. sanctions on the ICC have also undermined the court's credibility and created serious financial obstacles to its investigations into war crimes in Ukraine and Gaza. As remained The UN Security Council has been at a standstill for more than a decade, due to the veto power of its permanent members.
In addition, Trump's threats to occupy Greenland and Canada and seize the Panama Canal have undermined an already crumbling international legal edifice. Una Hathaway, a professor of international law at Yale University, said : "The mere fact that the possibility of these unlawful acts is clearly damaging to the legal base, because it makes it conceivable." Days after the United States followed Israel in carrying out unlawful airstrikes on nuclear sites in Iran, Hathaway noted that Trump's actions threatened to "reshape the global legal order, transforming it from a system of law to one of force."
But the erosion of international law began long before Trump first took office in 2017. Its importance has been debated from the moment it emerged almost two centuries ago. His proponents say he is an impregnable bulwark against another major war, and a preventer of crime and mass violence. His critics argue that he has worked to protect countries by providing them with language to justify their mistakes rather than protecting the world from the worst crimes. International lawyers are also divided on whether Their regime was alive and well, hibernating or dying, or long ago dead and becoming a "moral ghost" hovering over the world map.
When walking around The Hague, you may feel that it is not a city but a set of symbols. Walking through its streets repeatedly takes you back to the ruins of previous attempts at world peace. The building that formerly housed the International Criminal Tribunal for the Former Yugoslavia is located in front of the International Centre for the Prosecution of Crimes of Aggression against Ukraine. The Iran-US Court of Arbitration, established in the aftermath of the 1979 Tehran hostage crisis and still standing, is a 10-minute walk on the road, while The headquarters of the Organization for the Prohibition of Chemical Weapons (OPCW) is only a few meters away. These institutions have little legal connection, but their presence together in The Hague gives them "a semblance of legitimacy," as an international lawyer told me. The ICC is located in the northeastern corner of the city, close to the detention centre where the accused are being held. The closer we are to the Peace Palace, the seat of the International Court of Justice, the quieter and greener the city becomes.
These institutions are the physical embodiments of a discipline known as "international law," although scholars tend to disagree about what it really is. Instead of getting a clear answer, she is confronted with a series of metaphors: one lawyer told me that "it's like gravity: you don't see it, but it exists." Others likened it to spelling in English (grammar may seem made-up); pornography (you know it as soon as you see it); a body of water (restless); comedy (which may defy logic); or tragedy (everyone loses in most often). Novelist Shirley Hazard called it "just a hoax". Its constituent articles, according to the Statute of the International Court of Justice, include treaties, conventions, customs and cases, as well as "General principles of law recognized by civilized nations" and "Teachings of the most qualified experts".
To speak of international law as a mere set of rules and conventions is to ignore its function as the "common language of the international system", a means of expressing the belief that perpetrators of global crimes should be punished as perpetrators of domestic crimes; International law has become the language of the "educated middle classes," in the words of Jerry Simpson, a law professor at the London School of Economics. During an interview, he said: "When I go to dinner parties, people talk to me about international law all the time." Talk of international law conjures up a certain set of images: Germany's high command awaits verdict at Nuremberg; war criminals and genocide perpetrators are being tried in The Hague. These are episodes of international criminal law, the newest and most fragile branch of international law, and the most controversial branch among politicians, the media and the public.
Today, there is a growing sense in this area that international criminal law is a failed project, as if it were a "dead man walking on the earth". Of the lawyers I spoke with, few were prepared to defend him without any reservation. Adel Haq, a law professor at Rutgers University, said: "The gap between the ambitions of international criminal law and the actual reality of people is widening. This is a problem facing the law, because it is supposed to achieve real-world goals."
The establishment of the International Criminal Court in 1998 was the fulfilment of the most magnificent aspirations of international law, which is to hold perpetrators of major crimes accountable whenever their States fail to do so. The Court opened its doors at an exceptional, perhaps unrepeatable, moment in international relations when world powers were still experiencing the end of the cold war. David Bosco, a journalist and academic who has spent decades covering the court, said: "Looking back on the past, it was a strange historical period that saw a marked decline in many of the sovereignty and security concerns of the major powers. "This has allowed a project like the ICC to take off in a way that would not have been possible in any other period."
That period turned out to be short-lived. The International Criminal Court, with an annual operating budget of around €200 million, has never been able to fulfil the aspirations that led it to exist. In its 23-year history, only 11 convictions have been issued, all for crimes committed on the African continent. (Given the court's supposed focus on trying African indictees, AU member states have repeatedly threatened to withdraw from the Rome Statute, the ICC's founding treaty.) Martti Koskenemie, a Finnish legal scholar and former diplomat, said: "There is a neo-colonial aura surrounding the ICC that is difficult to get rid of." In his view, the court was a product of the "liberal vanity" of the nineties and the result of a regime seduced by its own idealism.
Since its founding, the ICC has been accused of being an instrument of victor's justice, a "sham court" in the eyes of its critics. Although the court's arrest warrants for Russian President Vladimir Putin in a clear acknowledgment of double standards and Israeli Prime Minister Benjamin Netanyahu, who has been defended by NATO governments, are important gestures, the chance that either charge will lead to a trial is almost non-existent. Russia and Israel have joined the United States, Syria and China in rejecting Accession to the Rome Statute, effectively depriving the court of the power to try its citizens. Earlier this year, Hungary informed the UN that it would join these countries, by withdrawing from the ICC and hosting Netanyahu in Budapest.
The United States' commitment to undermining the Court is deeply rooted. A month after the court was formally established, Congress passed a law known as the Hague Invasion Act, giving the president the authority to use "all necessary means" to release a U.S. government official in ICC custody. When ICC Prosecutor Fatou Bensouda tried in 2017 to open an investigation into atrocities allegedly committed by U.S. personnel in Afghanistan, he refused her a visa to enter the United States, and the court was threatened with imposing Economic sanctions. The investigation was eventually dropped as a result of pressure from the Trump administration. Bensouda was recently tasked with investigating allegations of genocide in Palestine, a mission for which she faced direct threats to her person and family.
The high-profile arrest warrants issued may have elevated the court's standing, but they have also underscored its impotence and attracted potentially disastrous countermeasures by the United States. "Ironically," international lawyer Chantal Meloni told me, "the moment when the court proves that it is strong could be its end."
Criticisms of international law are commonplace, somewhat undeniable; it is too weak, selectively applied, and merely an extension of state power. Yusra Suwaidi, a lecturer at the University of Manchester, said: "We are all prisoners of this horizontal system, where states have to watch each other, and this will inevitably be politicized." It's basically an optional restriction regime: Weak states that ignore his directives are called pariahs or rogues; strong states that do so are called hegemons.
For critics of this regime, the problem is not only that the law not only stops wars or protects civilians, but also that it provides a vocabulary for states to justify the unfettered use of force. Breaches are not an exception, they are the rule. For example, international humanitarian law restricts the use of certain types of weapons, such as cluster bombs, which are "inherently indiscriminate and capable of causing harm without distinction between combatants and civilians." This did not prevent Israel, which for the first time ratified the The 1995 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons on the Use of Cluster Munitions against Civilians during its War on Lebanon. These bombs killed more than 1,000 people, almost a third of them children. The Israeli military claimed that the use of cluster bombs was not a violation of international law, as they were focused on military targets, and that residents of Beirut's southern suburbs had been warned of the attack earlier.
During that conflict, Israeli forces developed what is now known as the Dahiya doctrine, which allows the use of "disproportionate" force against civilian population centres in certain circumstances. The attack on Dahieh was a flagrant violation of what is known as the "principle of proportionality" in international law, which states that civilians may not be attacked if the result is "excessive in relation to the concrete and direct military advantage foreseeable." The UN Human Rights Council established a commission of inquiry to investigate this matter and concluded that "why There is a justification" for the use of cluster bombs.
Every scholar who laments the regression of international law will face his own moment in which corruption began. In Koskenemi's view, this happened in the sixties when his original goals of peace and justice were replaced by the administrative and organizational imperatives of globalization. For Israeli legal scholar Itamar Mann, the Dahiya case seemed to mark the beginning of the end of international law as a reliable system for preventing massacres. He said: "They not only ignored the law, but based it on it for the very purposes that it was supposed to limit or control." By trying to justify a legally unjustified action in the language of international law, Israel flouted the spirit and letter of the law. Speaking about the state of international law in general, Mann said, "It was a way to challenge the brute uses of force, and that no longer exists."
The invocation of international law as a cover for violating its own regime has contributed to the impression that it is waning. For example, Russia has struggled to provide legal arguments for its 2014 operation in Ukraine. In a document seeking to justify its attack on Israel on Oct. 7, Hamas cited the International Court of Justice's view on the construction of a wall on the occupied Palestinian territory and called on states to "assume their responsibilities under international law." In contrast, Israeli politicians have often invoked international law as a shield and pretext for the continuation of the war in Gaza. This is either an indication that something is wrong Deep into the international system, or a signal that that system is working as it should.
Jerry Simpson began his career believing in international law and its power, writing articles offering institutional proposals for the creation of new commissions and the like. Now he argues that this approach is misleading, and that part of the problem with this system is that international law, like any belief system, is essentially just a collection of words, and that these words have lost their connection to the facts they are supposed to describe.
Monica Hakimi, a former lawyer at the U.S. State Department and professor of international law at Columbia University, said: "Many are trying to stick to the legal system that has become less accessible to us. We do not want to give up and abandon international legal norms that have prevented major wars and protected individual rights. "But I think we haven't thought hard about the kinds of concessions we're going to have to make if we want to stop the most dangerous trends we're experiencing."
For true believers in this system, there is no crisis in international law. Der Tlade, a widely respected South African legal scholar who was appointed judge of the International Court of Justice last year, asserted that international law has not regressed. Rather, it remained in place as "a set of neutral rules that are supposed to apply to relations between States, and to be applied without fear or favour."
Tladi has a clear vision of the limits of his work and has taken a blatantly realistic approach in his legal opinions. In May, in a statement on South Africa's lawsuit against Israel for violations of the Genocide Convention, he wrote that "there are no words to describe the horrors in Gaza," and explained that the court had ordered Israel to cease its military operations and demanded that Hamas release the hostages. He concluded his statement by saying: "But the court is only a court!" His words and those of his colleagues had little effect. The law issued directives and rulings, but they fell on deaf ears. No advisory opinion can force a tank to retreat from course.
What we are witnessing today is not the failure of international law but the failure of international politics, Tlady said, explaining that "the law exists, but the gaps in international law have often been used as a basis for lack of accountability." Even in cases where there are no loopholes, Tlady says that "there is no question about the fact that you are not allowed to commit genocide. Politics and international power have weakened the force of international law, and the influence of power on the legislative process cannot be ignored."
When I spoke with lawyer Raji Sourani, director of the Palestinian Centre for Human Rights, who fled Gaza with his family after their home was bombed in late October 2023, he presented a similarly sharp defense of international law, outlining a list of victories, including that the International Court of Justice recognized that a possible genocide was unfolding in Gaza, and issued six provisional measures ordering Israel to restrict its use of force and abide by the Genocide Convention. The ICC also issued arrest warrants for Netanyahu and a minister His former defense is Yoav Galant; nearly 100 Israeli soldiers are being investigated for war crimes in at least 14 countries under the principle of universal jurisdiction. "The problem is not with international law. We have used it to the fullest for the rule of law, human dignity and the protection of civilians. Rather, it lies in States that believe that international law should not be applied consistently." Sourani told me that he and his Palestinian colleagues "were amazed when they talked about Ukraine's right to self-determination and independence." Those same standards must be applied everywhere. "There can be no real democracies when they are selective in determining to whom international law applies."
Leila Sadat, a former special adviser to the International Criminal Court and a prolific researcher, argues that critics of international law bear some responsibility for the dire state of the regime. By constantly raising the question of its importance, and even its existence, they have opened the door to ridicule, attack and manipulation. When she started working at the ICC, she desperately wanted to make it more effective. But she said: "It never occurred to me to challenge the whole concept that individuals must be held accountable for mass atrocities."
For Sourani, discussions about international law are far from academic depth. "We believe in justice, human dignity, the rule of law, and human rights. And these are not just words. It is people's lives, their blood, their pain, their suffering." Earlier that day, he was able to contact a friend who was still in Gaza, who told him that he could no longer look into the eyes of his wife and children, because he could no longer find anything to feed them. "He said to me, 'Raji, I hope I die.'"
Where is international law headed? Yusra Suwaidi says this system is cyclical. "Sometimes, horrific events take place to awaken humanity from its inattention, push it to reflect, correct its course, and return to our fundamental values." We are witnessing a period of regression; international law will not disappear, but its institutions will likely continue to lose credibility, and their judgments will lose weight. In addition, the deterioration of international law will be accompanied by a parallel erosion of the rule of law within States. "It's easy to criticize international law and say that all its provisions are unenforceable, and that it's all a joke," Sadat said. We see what happens when Trump attacks domestic law. Every law is based on a system of good faith, including national law."
China has gradually begun to assume the role that the United States previously played in international institutions, reformulating the law to suit it. As the US moved away from multilateral forums, China began to turn toward them. Sadat pointed out that "the Chinese attend all the meetings of the International Criminal Court, and participate in the system." She predicted that without U.S. involvement, "what we're likely to get is an international legal system led by China."
Chinese-led international law is likely to be one that underestimates the importance of protecting human rights and distributing aid, and raising respect for state borders. Julian Kuo, a law professor at Hofstra University, said the "jealous protection of state sovereignty" embodies the principle around which Chinese foreign policy revolves. "The United Nations is the forum they use to sell this vision to other developing countries; they want to make common cause with countries that are tired of receiving lectures from Europeans." Americans and NGOs."
But so far it seems that the Chinese-led international order will not be more consistent than the previous version. "Everyone is going in different directions; China is very interested in sovereignty and territorial integrity, but it is making little effort to help Ukraine. Turkey has been occupying Cyprus for about 60 years, and people are kind of used to it." Recently, China's envoy to the United Nations said that US strikes on Iran have damaged the country's credibility in international negotiations, and Chinese state media criticized the United States for practicing "power politics" at the expense of international law.
Over the next few years, the thick layer of international treaties and conventions that have governed the past decades may continue to erode. In late June, Indian Home Minister Amit Shah declared that his country would never "reinstate" the Indus River Water Treaty and that "Pakistan will be denied unjustifiably the water it obtains."
However, Ahmed, a former Pakistani minister, told me that despite the current situation, he remains hopelessly optimistic, at least in the long term. "Every force has a counterforce," he said. For every genocide that occurs, there will be counter-lawsuits to hold the perpetrators accountable." Every action must lead to a ruling. "Will these provisions be implemented? No. Does this mean the collapse of the system? No. These judgments may be unimportant and illogical today, but they will reappear."
Ahmed believes that only a crisis will force humanity to come together, redevelop global institutions and recommit to international law. The crisis that could revive international law was not the Israeli-Palestinian conflict, the Russian-Ukrainian conflict, the threat of annexation of Greenland or the erosion of multilateral institutions. It's climate change. "Over the next 7 years, international law will respond to climate change and move into other aspects of this system, from commercial investment first to territorial integrity and ICC proceedings."
Over the past year, an unprecedented number of countries have participated in climate crisis proceedings at the International Court of Justice, and judges are currently working on an advisory opinion on countries' obligations to protect the environment. "If we look at the scientific reports, they clearly tell us that we are not making any progress in the fight against climate change. Either the law is inadequate, or it is not being enforced properly."
The field of international law has always been a dynamic system, and it must evolve in parallel with the world it seeks to control. "International law will be fine, but it will reflect the state of the world it will govern. What will this world look like?"