‘International law is in crisis’: Experts are concerned over the state of accountability on the global stage

After World War II, the world built new systems meant to prevent future horrors.

The United Nations was established in 1945, the International Court of Justice was created to resolve disputes between states and, eventually, the International Criminal Court was formed in 2002, tasked with prosecuting war crimes and crimes against humanity.

But now, those very institutions are under attack.

In February, the US sanctioned Karim Khan, the ICC prosecutor who last year issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, former Israeli Defense Minister Yoav Gallant and three Hamas leaders.

In an interview with CNN’s Christiane Amanpour, Khan recalled how some American officials tried to pressure him directly.

“I’ve had some elected leaders speak to me and be very blunt,” he told Amanpour. “‘This court is built for Africa and for thugs like Putin,’ was what one senior leader told me. We don’t view it like that.”

In its history, the ICC has delivered 11 convictions. All of them have been for crimes committed on the African continent. Major powers like the US, Israel, India, Russia and China are not parties to the court’s founding treaty, the Rome Statute.

But the ICC does have jurisdiction over the State of Palestine.

American and Israeli officials have been outraged over the arrest warrants and other actions taken by international bodies to hold Israel accountable for its actions in Gaza and the occupied West Bank.

Earlier this month, the US also sanctioned Francesca Albanese, the United Nations Special Rapporteur on the Occupied Palestinian Territories, who has been a vocal critic of Israel.

For Israeli legal scholar Itamar Mann, the pressures have created “an extremely destabilizing moment” for international law. He is normally based at the University of Haifa in Israel, but is currently at the Humboldt University of Berlin.

“We all know this politically but what we tend to forget is that the institutions are on some level a reflection of the political order at any given time,” Mann said.

On October 7, 2023, an attack by Hamas fighters left some 1,200 people dead in southern Israel, mostly civilians, with the group taking some 200 others hostage.

In its response, Israel has carried out a regional military campaign that has killed tens of thousands of people. In Gaza alone, the Health Ministry reports that the death toll has surpassed 55,000 people. More than 50,000 children have been reported either dead or injured, according to UNICEF.

Israel also stands accused of blocking food and aid to more than 2 million people there.

In the 21 months of its military campaign, Israel has bombed four countries in the region — Syria, Lebanon, Iran and Yemen, occupying parts of Lebanon and Syria.

Mann said that Israel’s actions are enabled by political cover from the United States, and the pressure campaign led by the world’s superpower has had a chilling effect on individuals working in the legal field.

“They’re intimidating, threatening and bullying the community that’s trying to work for international criminal justice,” Mann explained. “Many of us want to do something good in the world, but very few of us, surely not myself, are real heroes. We have families, we want to look after our children, and it’s not something that many people can really afford to be exposed to, an arrest or to be exposed to an asset freeze or bank account freeze, or to be disconnected from family ties.”

That doesn’t mean they have completely stopped working behind the scenes, Mann added, but they have a lot more to be worried about.

Janine di Giovanni, who spent decades reporting on conflict, has witnessed the genocides in Srebrenica, Rwanda and the one against the Yazidi people in Iraq. She has been paying close attention to what’s happening in Gaza.

“It’s incredibly disturbing to see what we are seeing, which even the most conservative Jewish scholars and genocide experts like Omer Bartov are calling a genocide,” she said.

Multiple other legal scholars have come to a similar conclusion, and last year, the ICJ ordered Israel to prevent genocide in Gaza by providing humanitarian aid and basic services in a case brought forward by South Africa.

Israel denies the accusation of genocide and has called the case brought by South Africa to the ICJ “wholly unfounded” and “morally repugnant.” It has accused South Africa of promoting “biased and false claims.”

Di Giovanni said that at a time when powerful states are preventing collective actions, experts should be finding other ways.

That’s why she and a colleague started the Reckoning Project, which focuses on war crimes and atrocities committed by Russia in Ukraine.

“We founded the Reckoning Project largely because I was really frustrated having been a war reporter for 35 years and seeing very little justice. Because, largely, investigations weren’t started until after the wars ended,” she said.

Members of her team based in Ukraine gather witness testimonies and evidence. They work closely with local lawyers and prosecutors to build strong cases.

Similar work has been going on regarding Syria, di Giovanni said, and European courts have been successful in prosecuting Syrian war criminals.

While, at the current moment, international institutions seem to be slow or incapable of carrying out justice, di Giovanni added that the political situation won’t remain the same. There will come a moment when the road to accountability opens.

“And when that happens, we’re ready. We’ve got the dossiers, we have the files against [Russian President Vladimir] Putin, against Netanyahu. And they will be ready to go with prosecutors.”

Meanwhile, for Monica Hakimi, who teaches international law at Columbia University, the failures to deal with mass atrocities come from deeper and more systemic problems.

Hakimi, who was a lawyer at the US State Department under former President George W. Bush, said we should be focusing more on preventing war crimes in the first place.

In the past, countries that fought wars also cared about the rules that governed them, she added. They trained their militaries on the laws of war. These laws weren’t perfect, they have always allowed for some killing of civilians.

“But now, we are seeing less commitment to training forces to limit violations,” she explained.

On top of that, there’s been a considerable drop in funding and support for organizations like the International Committee of the Red Cross, which oversees and implements a lot of the laws that govern wars.

“And that, of course, leads to more space for conduct that is inconsistent with the norms.”

Hakimi noted that for any improvement to happen, states need to agree on two things: “The first is preserving states as states. And the second is protecting individuals within states. That balance has never been easy. But it has long been the balance of international law, and it is a balance that is, in my view, collapsing right now.”

Something that has tipped the balance is the rise in militant groups like Hezbollah in Lebanon and the Houthis in Yemen, which have sophisticated weapons.

These groups don’t follow international law.

Still, according to Tom Dannenbaum, who teaches international law at the Fletcher School of Law and Diplomacy at Tufts University, that doesn’t absolve governments of their obligations.

“International humanitarian law is the commitment that all states and parties make to humanity to comply with some basic, minimum rules in war,” Dannenbaum said.

States are recognized as having a certain form of legitimacy under international law in exercising their power, whereas non-state groups are not.

Dannenbaum has written about the use of starvation as a weapon of war in Sudan, where the Sudanese Armed Forces and the Rapid Support Forces have been fighting for almost two years. More than 150,000 people have been killed, over 12 million have been forced from their homes, and about half of the population is facing extreme levels of hunger, according to the World Food Program.

“I think it’s fair to say we’re now at a point where it’s no longer simply a project of weathering the storm, and weathering the assaults on international law,” Dannenbaum said. “But recognizing that this system is ultimately going to require rehabilitation, reconstruction and reimagining. Ultimately, it is in the interest of states to come together and seek to find means through which to cooperate,” he explained.

Justice may take a long time to achieve, according to these experts, but it’s not impossible.

International law was created to shield the less powerful, and it has been effective in the past.

“Let’s look at Radovan Karadžić, one of the butchers of the Balkans,” said di Giovanni of the Reckoning Project. “When he was captured by The Hague, prior to that, we thought that the prosecutions would have been unthinkable but civil society, independent investigators helped to bring him there.”

Former Syrian President Bashar al-Assad could also end up on trial in The Hague in a few years, she added.

What is important, is that human rights activists and legal experts keep documenting and collecting evidence — and, most importantly, not lose hope.

“In 50 years’ time, our grandchildren, our descendants are going to say to us, ‘Why did you let this happen?’” di Giovanni said. “And I don’t want to be — well, I’ll be dead by then — but I want our work, our archives, they will live beyond us and they will show we were watching, we were documenting and we were determined that the evil people that did this were not going to walk away with it.”