International Law and Human Rights
This is the sixth in a series of essays I’m writing about International Relations and Foreign Policy. You can find the first five on March 21, March 28, April 4, April 11, and April 18.
International law serves as the framework that governs relations between nations, transcending borders and cultures. Human rights occupy a central position within this intricate web of legal norms. These rights, inherent to all individuals, encompass dignity, freedom, equality, and protection from discrimination. An examination of the interplay between international law and human rights lays out the delicate balance between sovereignty and global responsibility, looking toward a world where justice prevails for every person, regardless of nationality or circumstance
These issues are front and center right now because of the uproar over human rights violations in Gaza. The Hamas-Israel war has been marked by intense conflict and human rights violations. Both sides have been accused of committing war crimes. Hamas, the Palestinian militant group, has been criticized for its indiscriminate rocket attacks on Israeli civilians, taking hostages, and using human shields. These actions violate international humanitarian law and endanger innocent lives.
On the other hand, Israel has faced scrutiny for its military actions in densely populated areas, which have resulted in civilian casualties and damage to civilian infrastructure. The rules of war, known as international humanitarian law, aim to protect civilians, health providers, and humanitarian workers. Despite the complexities of the conflict, adherence to these rules is crucial to safeguarding human rights and minimizing harm to non-combatants
Student protests over the war in Gaza have created a new and unpredictable challenge for President Joe Biden. As he resists calls to cut off U.S. support for Israel, he must also navigate the delicate balance of honoring free speech rights while ensuring safety for graduates during end-of-year commencement ceremonies. The protests at Columbia University and other campuses have captured global media attention, resurfacing questions about Biden’s support from young voters. His handling of the Middle East conflict is closely watched by both Jewish** and Arab-American voters in key swing states. These demonstrations may serve as a passing distraction or potentially build momentum toward the Democratic National Convention, echoing the unrest of protests against the Vietnam War during the party’s 1968 convention. The outcome remains uncertain, but the impact on the national student movement could be significant.
Principles of International Law
The first issue we have to face is the unsolvable and inevitable tension between state sovereignty and the desire for international stability. The atrocities of the Third Reich and its associated violations of generally recognized standards of international relations and human rights led the nations of the world to agree on some standard definitions and operating principles. These standards are administered through a variety of international legal institutions, which we’ll look at in a few minutes.
Equality of States
This principle insists that all sovereign nations are equal under international law. Each nation has the same rights and responsibilities, regardless of size or power. This means that each nation’s sovereignty extends to internal affairs, jurisdiction over citizens, and territorial integrity. No single nation, regardless of its military or economic power, can legally interfere in the internal affairs of another country.
A speech made by Senate Majority Leader Chuck Schumer (D-NY) in March of this year stepped over the edge of violating this principle when he called for new elections in Israel to topple the right-wing Netanyahu government. Saying that this would be desirable doesn’t violate the principle; a push to pass legislation requiring this – for example, conditioning US aid to Israel on a change in government – would be a violation.
Non-Intervention
This principle confirms that the default approach among nations is non-interference in another nation’s internal or external affairs. This prohibits coercion, force, or assistance to factions seeking to influence foreign governments. Exceptions exist for “national liberation” movements, although one nation’s “national liberation” movement might be another nation’s political coup.
Any number of actions would be considered in violation of this principle.
Covert Interference in Elections.
We have seen this in recent presidential elections, as a variety of foreign actors – particularly Russia and China but others as well – attempted to influence the election through physical and digital means of interference. In particular, the role of Russia’s Leningrad-based International Research Agency – a “bot farm” that posted megabytes of pro-Trump, anti-Democrat information on social media sites in 2016, 2020, and already in 2024 – exemplifies this type of interference
Support for insurgencies or rebellions
The current Ukraine-Russia Conflict is an example of a violation of this principle. Russia’s support for separatist movements in eastern Ukraine precipitated the current armed conflict. The provision of military equipment, troops, and financial aid by Russia to these separatists challenges Ukraine’s territorial integrity.
Economic Coercion.
Under some circumstances, the imposition of economic sanctions or the use of economic leverage to force a state to adopt specific policies or change its government could be seen as a violation of this principle. Such sanctions may be lawful if they fall within the boundaries of “retorsions” – legitimate countermeasures. If they overstep these boundaries they become unlawful. United States sanctions on Iran are not obviously identifiable as retorsions – they are more like warnings of things to come if Iran doesn’t change its policies in a number of areas – and thus could be questionable under International Law.
Prohibition of the Use of Force:
One of the principles of international law is that force should be the last resort in the exercise of international relations. Except in self-defense, the use of force is prohibited. This includes preemptive strikes and indirect actions against other states in a kind of triangulation of influence. Threats or economic actions that endanger peace also fall under this prohibition.
Again, Russia’s invasion of Ukraine violated this principle. It directly contravenes Article 2(4) of the United Nations Charter, which prohibits the use of force against the territorial integrity or political independence of any state.
Good Faith
This principle refers to the expectation that state actors will act with honesty, loyalty, and reasonableness in the conduct of their international relations. They are expected to uphold treaties and agreements and act with integrity as they interact with other nations.
Examples of breaches of this principle are, unfortunately, too common to list them all here. On example is the 2002 decision by Russia to withdraw from the Anti-Ballistic Missile (ABM) Treaty that both the United States and the Soviet Union agreed to in 1972. The withdrawal marked the end of one of the most important Cold War era arms control agreements and raised concerns about a new arms race between the two countries.
Equity and Flexibility
International law allows for flexibility in its application. Equity permits adjustments based on specific circumstances. This principle balances strict rules with the need for fairness and justice. One example of the importance of this principle can be found in Africa’s international economic agreements, which are noted for their flexible cooperation rather than strict adherence to rules. This was particularly true during the COVID years, as flexibility and innovation were needed to cope with new realities, especially for the economies of developing nations in Africa, Asia, and Latin America.
Human Rights and Humanitarian Intervention
Humanitarian Intervention refers to actions taken by organizations (often states or coalitions of states but including Non-Governmental Organizations -- NGOs) to alleviate extensive human suffering within the borders of a sovereign state. Such suffering typically results from a government’s deliberate and systematic violations of human rights, including forced expulsions, ethnic cleansing, and, in extreme cases, genocide. Humanitarian intervention can occur even when there is no effective government and civil order has collapsed. It involves a calculated and uninvited breach of sovereignty in the name of humanity. While it need not always involve military force, the term usually refers to situations where force (or the threat of force) is used1. The tension between state sovereignty and evolving international norms related to human rights and the use of force remains a compelling foreign policy issue.
The current situation in Gaza is a primary example of how this plays out in practice. The Un Human Rights Office in the Occupied Palestinian Territory has documented a massive human rights crisis in Gaza following the Hamas attack on Israel and the subsequent Israeli actions. We’ve all seen the statistics. Aid organizations are not interested in assigning blame for the ongoing humanitarian crisis in Gaza; they simply want to provide the people of Gaza with the food, water, medicines, and other things they need to live.
Humanitarian intervention challenges the traditional concept of state sovereignty. When a nation fails to uphold international law and protect human lives, it may forfeit its right to sovereignty political independence, and territorial inviolability.
The situation in Gaza is complicated by the fact that this is a situation where a region (Gaza) which is not recognized as a state, is employing a non-traditional guerilla army to fight the traditional military of a state (Israel). The crisis has prompted urgent international assistance, but it also underscores the need for a political solution to the 75-year conflict between Palestinians (both Christian and Muslim) and Israelis in the region.
War Crimes and International Justice
War Crimes
It’s hard for me to wrap my mind around the idea of war crimes. War is a mode of conduct that is based on the idea that people on one side of a conflict plan to kill people on the other side of the conflict, with the expectation that somewhere in the process they will do some damage to the territory where the people live. The idea that something like this can be governed by “laws” that some outside entity will enforce seems very odd. But, again, the Third Reich provides the rationale for why such laws need to exist.
War crimes constitute violations of international humanitarian law. Perpetrators of war crimes bear individual criminal responsibility under international law. Another thing that the Third Reich taught us is that “I was just following orders” is not a defense to a criminal charge. Across the globe, military academies teach the idea of a soldier’s personal responsibility for his/her actions in wartime. Most of us remember the trial of Lieutenant Calley, who was court-martialed for his role in what became known as the My Lai massacre. The courts ruled that he bore individual responsibility for his actions on that day.
Unlike genocide and crimes against humanity, war crimes always occur within the context of an armed conflict, whether it’s an international or non-international one. Examples of war crimes include murder, torture, pillage, and intentionally directing attacks against civilians, humanitarian aid workers, religious and educational buildings, and hospitals. The use of weapons not authorized by international conventions, such as chemical weapons or cluster munitions, can also be considered war crimes
The term “crimes against humanity” is used to describe acts committed as part of a widespread attack directed against any civilian population. These acts include murder, extermination, enslavement, torture, rape, and other forms of sexual violence of sexual slavery. Unlike war crimes, crimes against humanity need not be linked to armed conflict and can occur even in times of peace.
In recent years, this term has been applied to a wide range of situations:
The Syrian civil war, which has witnessed mass atrocities against civilians
The Rohingya Crisis in Myanmar, where the Myanmar military has been accused of committing genocide against the Rohingya Muslim minority population of the country.
The Yemeni civil war, which has led to a dire humanitarian catastrophe. Airstrikes by a Saudi-led coalition have targeted civilians, including in schools, hospitals, and markets.
In the South Sudan, ethnic violence has resulted in widespread suffering. Civilians have faced mass killings, sexual violence, and forced displacement.
The Central African Republic has witnessed sectarian violence, with armed groups targeting civilians based on religion and ethnicity.
International Justice
The prosecution of crimes requires a justice system. One of the problems faced by the international community is that the bedrock principle of national sovereignty negates the effectiveness of any system of international justice. Nonetheless, several international institutions exist to enforce international law in the face of resistance from the nations accused of violations.
The United Nations
The Charter of the United Nations recognizes its mission to promote peace, security, and human rights. It does this, in part, through establishing norms, treaties, and conventions that guide international behavior. The UN Security Council has a special responsibility for maintaining international peace and security. It can authorize sanctions, peacekeeping missions, and even military interventions. The UN High Commissioner for Human Rights monitors human rights violations worldwide and advocates for justice.
The UN High Commissioner for Human Rights has significant power and responsibility to investigate allegations of human rights violations, publish reports on their findings, advocate for adherence to international standards, and provide guidance and training to states, organizations, and individuals on upholding human rights. It does not, however, have any direct way to enforce its rulings. It is dependent on other organizations to ensure compliance.
International Court of Justice (ICJ):
The ICJ, also known as the World Court, settles legal disputes between states. It interprets international law and issues binding judgments. Its role includes resolving territorial disputes, addressing state responsibility, and ensuring compliance with international obligations.
The weakness of the ICJ can be seen in one of its recent cases. In 2022, a complaint by Ukraine against Russia for violating the 1948 Genocide Convention (to which both Ukraine and Russia are parties) by falsely claiming genocide as a pretext for invading Ukraine. The International Association of Genocide Scholars supported Ukraine, which asked for expedited provisional measures directing Russia to halt its offensive. Russian representatives refused to appear. On March 16 of that year, the ICJ ordered Russia to "immediately suspend the military operations", on a 13–2 vote with the Russian and Chinese judges in opposition. The order is binding on Russia, but the ICJ cannot enforce it.
International Criminal Court (ICC)
The ICC prosecutes individuals for genocide, crimes against humanity, war crimes, and aggression. It operates independently and investigates cases when national courts are unable or unwilling to do so. The ICC contributes significantly to international justice by holding perpetrators accountable. However, the ICC does not have its own police force or enforcement body. Instead, it relies on the cooperation of countries worldwide for support.
The ICC can only intervene where a state is unable or unwilling to genuinely carry out the investigation and prosecute the perpetrators. It is designed to complement, not replace, national judicial systems.
In March of 2023, the ICC issued an arrest warrant for Russia’s President Putin in connection with alleged war crimes concerning the deportation and illegal transfer of children from occupied Ukraine. The ICC’s Pre-Trial Chamber found reasonable grounds to believe that Putin bears individual criminal responsibility for these war crimes not because of his own actions but because he failed to exercise proper control over subordinates. One problem with this – neither Russia nor Ukraine are parties to the statute that established the ICC, and the Kremlin has stated that it does not recognize the court’s jurisdiction. Nonetheless, last summer Putin chose not to attend a regional summit in Johannesburg, South Africa, for fear that South Africa, a signatory to the ICC statute, would be obligated to arrest Putin should he visit the country. The South African government indicated that they believed that any attempt to arrest Putin would be considered a “declaration of war” against Russia and they would not do this.
Before we land on Russia with both feet because of its refusal to join the ICC, we need to recognize that the United States is not a member either. Over the years since the formation of the ICC in the late 1990s and early 2000s, various administrations have held different positions on policy toward the ICC. The Clinton administration signed the organizing statute (the Rome Statute) but did not submit it for Senate ratification. The Bush administration stated that the US would not join the ICC. The Obama administration re-established a working relationship with the Court as an observer. The #P01135809 administration did not enunciate a consistent position toward the ICC, but it did impose sanctions on ICC officials in response to the ICC’s investigations into alleged war crimes by US military and intelligence personnel in Afghanistan as well as the actions of US ally Israel in the Palestinian territories. The Biden administration lifted those sanctions and has shown support for the Court’s goals, although the US remains a non-member.
Before he was appointed Special Prosecutor in the Justice Department’s investigation into the former president, Jack Smith served as a judge at the ICC. He is accustomed to dealing with wily criminals backed by networks of thugs. He is up to the task before him.
Regional Bodies
Regional organizations like the European Union (EU), the African Union (AU), and the Organization of American States (OAS) also enforce international law within their respective regions. They address regional conflicts, promote cooperation, and uphold human rights.
National Courts and Universal Jurisdiction
National courts can prosecute individuals for international crimes using the principle of universal jurisdiction. This allows them to hold perpetrators accountable, regardless of where the crimes occurred. National legal systems play a critical role in enforcing international law. The US DOJ has charged four Russi-affiliated military personnel with war crimes in connection with this invasion; these are the first-ever charges under the US war crimes statute.
These efforts at codifying and enforcing international standards of justice challenge national sovereignty. The United States, for example, has historically been resistant to any attempts by international bodies to exercise jurisdiction over its citizens without consent.
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