On the Impotency of International Law in a System of Sovereign States: The Case of Gaza

The sheer brazenness with which countries ironically recognized as being sovereign states by international law ignore international law even in regard to human rights that seeks to place boundaries on said sovereignty reflects the impotency of international law, and thus even that which recognizes national sovereignty itself. For the rest of us, continuing to believe that upcoming cases before the International Court of Justice, the UN’s court, are of consequence and thus even worth paying attention to, demonstrates abject stupidity, as if we were herd animals without learning curves. Admittedly, the stubborn, self-aggrandizing governments are ethically worse than the world’s population that lets such governments blatantly and even explicitly ignore judicial rulings of the International Court of Justice (and the European Court of Human Rights), but culpability can also be gleamed from the public’s truly pathetic irrational belief that another case against a country that has just ignored a verdict of that very court might just work in curtailing human-rights abuses and outright, even genocide-scale, aggression that outstrips even the sin of retaliation. Either I am blind or the proverbial emperor is not wearing any clothes.

As a case in point, in January, 2024, the International Court of Justice announced its preliminary ruling on Israel’s military incursion into Gaza. “The state of Israel shall . . . take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention,” the court announced.[1] The court had not reached a verdict on whether Israel was committing a genocide, and but was saying that one could be in progress and thus Israel is obliged to see that it does not, and this includes allowing more humanitarian aid to reach the Palestinians. The health ministry in Gaza had reported that thousands of women and children were among the more than 25,000 people killed in Gaza by the Israeli army, which did not “differentiate between civilians and Hamas fighters.”[2] In addition, more than a million Palestinians there had become homeless. Because only 1,200 Israelis had died in the Hamas attack in October, 2023, the scale of the harm in Gaza is beyond the scope of “an eye for an eye” and retribution or retaliation.

Because we humans have flawed judgment concerning punishment for those who harm us, John Locke of the 17^th century in Europe claimed that a major legitimating function of a government is in providing impartial judges so that vigilantes don’t have to dispense justice in their own cases. He wrote, “it will be objected, that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends . . . therefore God hath certainly appointed government to restrain the partiality and violence of men.”[3] We are too violent a species to be able to be fair judges against people who have rendered us as victims. I submit that this holds for sovereign states, which are in a state of nature, Locke insisted, with each other because there is no higher human power that can restrain their lust for violence that goes beyond justice and even retaliation. This is precisely why an international court with no enforcement power, such as in the UN having its own military force with which to “remind” wayward states that they had agreed to be bound by international law. The lack of any such army is, I submit, the proverbial elephant in the room that no one wants to recognize and discuss. By the way, this is precisely why I view my non-academic short essays as a form of charity to my species in spite of itself. I don’t ask whether it deserves it—only whether my ideas can possibly help it. I suppose I am benevolent in spite of myself, for I am human, all too human.

Before the court’s preliminary decision, Israeli Prime Minister Ben Netanyahu had said that Israel’s “commitment to international law is unwavering,” and yet he added that the “charge of genocide levelled against Israel is not only false, it’s outrageous, and decent people should reject it.”[4] He would doubtless not be a fair judge in his own case, as he would doubtless throw that case out without letting it be heard. This is precisely why an international court is crucial, and, furthermore, that it must have a direct enforcement mechanism such that its verdicts will stick rather than be dismissed by a guilty defendant.

In its preliminary decision (not yet ruling on whether Israel was committing a genocide), “the court said Israel must restrain from the destruction of infrastructure, should support more humanitarian aid into the besieged Gaza strip and prevent calls to commit genocide against the Palestinian people.”[5] In reaction to the decision, Netanyahu said, “Israel has an inherent right to defend itself.”[6] Exactly two weeks later, he announced that he had “ordered the military to prepare a plan to evacuate civilians from Rafah ahead of an expected Israeli invasion” of the city.[7] Rafah had been home to 280,000 people, but the addition of other Palestinians made homeless in other parts of Gaza increased the city’s population to 1.5 million.[8] Forcing that many people to move in a short time span could itself be considered a violation of human rights if not part of a genocide. Also, the planned invasion itself would likely violate the court’s decision, which specified that Israel must not destroy the infrastructure in Gaza any further.

As for the court’s insistence that Israel let in more humanitarian aid, Israel actually “imposed financial restrictions on the main U.N. agency providing aid in the Gaza Strip, a measure which prevented a shipment of food for 1.1 million Palestinians” in Gaza.[9] Not even on a humanitarian basis was the Israeli government willing to heed the decision of the court whose jurisdiction Israel had agreed to, and whose law Netanyahu himself had said he respects so much.

There should thus be scarcely any doubt as to whether Israel would adhere to the court’s decision on a case set to begin on February 19, 2024 “into the legality of Israel’ 57-year occupation of land sought for a Palestinian state.”[10] Rather than focusing on Israel’s war with Hamas, that case concerns “Israel’s open-ended occupation of the West Bank, Gaza and east Jerusalem.”[11] Palestinian representatives planned to “argue that the Israeli occupation is illegal because it has violated three key tenets” of international law: “the prohibition on territorial conquest by annexing large swaths of occupied land,” the “Palestinians’ right to self-determination,” and the prohibition of “a system of racial discrimination and apartheid.”[12] In reading about the upcoming case, I felt an instantaneous rush of hope that the issue that had led to the Hamas attack in 2023 might finally be definitively decided by a neutral court rather than by the warring parties themselves by sheer might and strife in lieu of weak negotiations and weak allies on both sides. I had momentarily neglected to consider Israel’s response to the court’s preliminary decision—namely in dismissing or ignoring it outright and perhaps even going even further by adding a forced exodus from Rafah before another ground invasion. If you tell another person not to sneeze in your face and yet it not only happens again, but at an even closer range, you would naturally conclude that it will happen again unless some obstacle is brought to bear on that person. My point is that an international system in which there are no viable and enforced constraints on state-actors is incompatible with there being real obstacles on the wayward states. Relying on pressure from allies or even an impromptu coalition “of the willing” is not reliable enough to count on as a counterweight to such a severe flaw in the very fabric of an international system of unfettered sovereign nation-states.

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1. Thomson Reuters, “Israel Must Take Steps to Prevent Genocide in Gaza UN Court Says in Ruling on Temporary Measures,” the Canadian Broadcasting Company (CBC), January 26, 2024.
2. Ibid.
3. John Locke, “The Second Treatise of Government: An Essay Concerning the True, Original, Extent, and End of Civil Government,” in The Selected Political Writings of John Locke, Paul Sigmund, ed. (New York: W. W. Norton & Co, 2005): 17-125, sec. 13, p. 22.
4. Thomson Reuters, “Israel Must Take Steps to Prevent Genocide in Gaza UN Court Says in Ruling on Temporary Measures,” the Canadian Broadcasting Company (CBC), January 26, 2024.
5. Brad Dress, “Netanyahu Casts Off Genocide Case, Vows to Push Ahead Against Hamas,” The Hill, January 26, 2024.
6. Ibid.
7. Najib Jobain and Josef Federman, “Israel Seeks to Evacuate Palestinians Jammed into a Southern Gaza City Ahead of an Expected Invasion,” The Associated Press, February 9, 2024.
8. John Gambrell and Phil Holm, “From 200K to 1.5M People: Startling Images Show the Ongoing War’s Impact to This Small Area in Gaza,” The Associated Press, February 8, 2024.
9. Julia Frankel, “Israel Is Holding Up Food for 1.1 Million Palestinians in Gaza, the Main UN Aid Agency There Says,” The Associated Press, February 9, 2024.
10. Mike Corder and Julia Frankel, “Top U.N. Court to Hold Hearings on Legality of Israeli Occupation,” The Associated Press, February 18, 2024.
11. Ibid.
12. Ibid.

Mubarak Convicted in Egypt: A Precedent for Human Rights?

On June 2, 2012, an Egyptian court sentenced former President Hosni Mubarak to life in prison for being an accomplice in the killing of unarmed demonstrators during the protests in the “Arab Spring.” The significance of this verdict in terms of human rights from an international standpoint lies in the fact that the accountability on a ruler was accomplished by his own citizens—meaning the country’s own court. Lest the International Criminal Court be reckoned as coming up short in terms of being able to arrest and convict sitting or former rulers of states, the verdict from Egypt says, in effect, there is an alternative. Governments can fortify the independence of their respective judiciaries such that public officials can be held accountable domestically. Under this scenario, the ICC would be of value to the world particularly if it could be fortified to step in where states do not have court systems strong enough to arrest and try a current or former ruler. In other words, we ought not forget the alternative of national courts when we bemoan the weaknesses of the ICC.

All this is not to say that national judiciaries should necessarily be relied on—at least until they are strengthened in their capacity as a check on military, legislative, and executive officials and even heads of state. In the Egyptian verdict, for example, although Mubarak and his interior minister received life sentences, many officials more directly responsible for the police who killed the demonstrators were acquitted, as was Mubarak on corruption charges.[1] Furthermore, many lawyers said his conviction could be reversed on appeal. Accordingly, a prosecutor in the case announced an appeal would be made with a particular interest in convicting Mubarak’s sons of corruption and several police commanders of murder.[2] The want of convictions against them triggered popular protests across Egypt after the verdict.[3] Those protests signified a popular will that even high officials should be held accountable within the country rather than merely at the ICC. A judiciary should not depend on grass roots sentiment, however, so more evidently is needed before Egypt (and many other similar countries, no doubt) can be relied on to police their own officials on human rights abuses.

While hearing the life-sentence verdict against him, Mubarak shows no remorse.    Reuters TV

At the time of Mubarak’s conviction (and that of Charles Taylor by a Sierra Leon court at the Hague the week before), the world could be excused for having the false hope that dictators would thereafter finally be held accountable for violating the human rights of others. The hope in such a default-made-real can be funneled into a renewed effort to strength the ICC and the independence of governments’ own judiciaries. In other words, a better world wherein even the most powerful rulers and their subordinates are held accountable even for “giving the order” could finally be visualized, and out of this mere glimmer of sight could come the final push toward that better world.

1. David Kirkpatrick, “New Turmoil in Egypt Greets Mixed Verdict for Mubarak,” The New York Times, June 2, 2012. 

2. Alana Horowitz, “Mubarak Verdict To Be Appealed By Top Prosecutor,” The Huffington Post, June 3, 2012. 

3. David Kirkpatrick, “New Turmoil in Egypt Greets Mixed Verdict for Mubarak,” The New York Times, June 2, 2012. 

Corporate Legal Personhood in the Kiobel Case

In Kiobel v. Royal Dutch Petroleum, the U.S. Supreme Court waded into the murky waters of corporate legal personhood, at least potentially, in hearing oral arguments in late February 2012. The issue in the case is whether corporations can be held liable to the extent that they are complicit in a foreign government’s human rights abuses. Legal personhood would say that they could be. This would represent an obligation that goes with legal personhood. The question is whether the justices who conferred in the Citizens United decision the right of corporations, based on their legal personhood, to make unlimited political donations would also be willing to view obligations as “part and parcel” with such personhood. If not, then legal persons, unlike human persons, would have the benefits of personhood without any of the obligations—an oxymoron to corporations to be sure. In other words, such an asymmetry would render the legal personhood doctrine itself as akin to a one-sided coin—which cannot exist, let alone stand.

The full essay is at "Corporate Legal Personhood."