At first glance, the impotence
of the International Criminal Court and the International Court of Justice once
an order has been willfully ignored by a government may seem overwhelming. The continued
atrocities in Gaza and Ukraine even amid court challenges fueled the argument
that might makes right. Even so, the willful sense of impunity of the perpetrators
and their enablers in other governments may trigger enough of a public adverse reaction
that the courts and international law itself eventually come out stronger.
In 2024, the jurisprudence on
genocide was still new and has few cases. In its case against Israel, South
Africa urged the International Court of Justice to order provisional measures that
Israel would be obliged to take because an imminent risk of irreparable harm that
is genocidal in nature exists in Gaza. Allowing humanitarian aid into Gaza is
one such measure. With famine already in Gaza, South Africa asked the ICJ to
direct Israel to do more in cooperation with the United Nations. Expanding the number
of crossings for UN aid to enter the territory, and making that aid available
at various points throughout Gaza are two examples of how Israel could
cooperate with the UN, of which Israel is a member. The court issued such concrete
orders as these two, even as the court had to consider the risk that Israel
would violate the court’s provisional orders. In fact, in January, 2024, the
court ruled that given the future risk of genocide, additional provisional
measures were justified. This means that the court had found enough evidence of
a risk of genocide—not that the court found evidence that genocide was taking
place. This is a key distinction.
Moreover, the court had to ask
itself whether the group being harmed—residents of Gaza—are a protected
group? The court found that the Palestinians
constitute a national group. The court also had to assess whether there was destructive
intent, meaning that Israel’s actions in Gaza were geared to eliminating the
group rather than just killing individuals in the territory. South Africa
charged Israel with four out of five types of acts that are genocidal in nature.
By mid-April, 2025, Israel had been blocking aid trucks from entering Gaza for
over 6 weeks. Crucially, the underlying action was being deployed against the
group as a whole, as distinct from killing individuals by gun or bomb. Displacement,
starvation, and destruction of medical facilities are the other types of acts that
South Africa cited as being indicative of the Israeli government having a
genocidal intent.
Even though Israel has ignored
the court’s provisional measures, and in fact has gone in the opposite
direction, such as by blocking humanitarian aid from entering Gaza, that Israel
has engaged with the court by sending a high-level legal team to argue before
the court is a good argument for Israel being obligated to comply with the provisional
measures. Why would the Israeli government engage at all with the court if
doing so would make it more difficult to sneak out of any obligations? Israeli
officials continued to believe that it is too hard for genocide to be proved
in a court of law for the charge to gain traction at the court.
The arrest warrant issued by
the International Criminal Court for Israel’s sitting prime minister, Ben Netanyahu,
and a former Israeli defense minister is not for having committed genocidal
acts because proving genocidal intent is more difficult than is pursuing
charges of crimes against humanity and war crimes. Proof of cause of death is
required in the crime against humanity of extermination, and the prosecutor was
looking only at starvation, so the arrest warrant is not for that crime. Of
course, crimes against humanity and war crimes are not exhausted by extermination,
and are serious nonetheless.
It is significant, therefore,
that in April, 2025, Viktor Orban, the prime minister of the E.U. state of
Hungary, ignored its treaty obligation to the ICC and even E.U. law as per the
Rome Statute by refusing to arrest Netanyahu when he was visiting the state.
The court dismissed Hungary’s excuse that the state’s legislature had not yet
enacted a state law that would enforce the treaty obligation. Simply put, a
treaty has the force of law, so domestic legislation is not needed for a
government to act as obligated in line with the language of a treaty. As for
the Rome Statute, it has the status of federal law because the E.U.
itself has been delegated enumerated powers, or competencies, that the state
governments are legally required to observe. Furthermore, that Hungary was
planning to leave the jurisdiction of the international court does not mean
that the treaty obligations could legitimately be ignored prior to pulling
out of the court’s jurisdiction.
I contend that both Israel’s
willful violations of the international court’s rulings and Hungary’s refusal
to recognize the arrest warrant by hosting Netanyahu risked undercutting the legitimacy
of international law and courts such as the ICJ and ICC because the disrespect
could become an international norm.
There is not yet an
international, multilateral treaty on crimes against humanity; there is a
treaty against genocide. That the latter is being applied to powerful states
may result in less progress in negotiating a treaty on crimes against humanity.
On the other hand, South Africa taking Israel to court based on international
law has strengthened such law; even the court’s provisional measures have made
a dent in the public consciousness around the world. Even in just telling
victims that their rights are being violated is significant. It may be that
governments will recognize an obligation to thwart genocide in progress around
the world.
Moreover, in addition to how
easy it has been for governments, including Hungary, Russia and Israel, to
ignore the orders of international courts, that Orban has repeatedly violated
E.U. laws and various states, including Germany, have serially violated the state-budget
deficit limits of the Growth and Stability Pact undermines federalism as a
viable system of basic law. Even the checks and balances at a federal level, as
in a judiciary being able to curb excesses by an executive branch, were under
threat in the U.S. when a federal judge found sufficient evidence that the
Trump Administration was guilty of criminal contempt by ignoring certain court
orders. The inability of courts to enforce their respective rulings is a vulnerability
that was being exploited by governments at various levels of jurisprudence and
governance. The danger of such intentional breaches becoming a norm was nothing
short of the rule of law itself becoming too easily expendable.
To be sure, there were signs
of seeds sprouting that could someday result in national laws requiring
governments to take action against a power-aggrandizing government reaching the
level of extermination and genocide. The ICJ was hearing South Africa’s case,
especially after South Africa had been guilty of refusing to enforce an ICC
arrest warrant in Africa, and Nicaragua had brought Germany to the ICJ on the
charge of supplying weapons to a genocidal government in Israel. Although the
case law was still limited, public interest in the rulings of the ICC and ICJ
was growing globally in the early 2020s. It could be that the governmental
attacks on the international courts by refusing to respect their orders were
the last gasps of opposition before a global step forward in holding otherwise
absolutist-sovereignty in check. Just as climate change had entered public discourse
around the world, the obligation of governments around the world to stop one
government from exterminating a people could represent a progressive step in
our species’ political development.
