States' rights versus human rights

There has been some consternation over why South Africa was the one to sue Israel for genocide and why it was in a different international court in the Hague from the one that issued an arrest warrant for Vladimir Putin a little while before. It’s understandable why this is confusing when international law hasn’t had teeth for very long, so most of us grew up without it. But there is a significant reason.

It’s a matter of the difference between states’ rights and human rights. 

The International Criminal Court, which issued the warrant for Putin’s arrest in 2022, prosecutes individuals for international crimes. While the Russian state itself has significant responsibility in the war in Ukraine, it was easy to make a case that Putin was personally responsible. It isn’t easy, but individual victims, as well as states, can bring a case before the ICC. In the case of the war in Gaza, it is harder to pin the case on any one individual and it is difficult, if not impossible, for those affected to bring such a case. 

The International Court of Justice, however, only deals with disputes between states. You have to be a state to sue in that court, which would make it difficult for the Palestinians to bring such a case. South Africa brought the case instead on an interesting basis. Both Israel and South Africa are signatories of the Genocide Convention. At its most essential level, South Africa’s case was “we made a deal and you broke it.” 

Of course, the deal wasn’t just any deal. It was the foundation for an international order founded on law and human rights, rather than on a lawless order of “might makes right.” South Africa’s contention was that if the international structure is broken so egregiously anywhere, it puts us all in danger. Hence why South Africa or anyone else who signed onto the Genocide Convention has legal standing as an aggrieved party. We have all been made less safe.

Image via pixabay

This is essentially why we have laws at all, whether it’s a city ordinance or an international convention. Laws may even be inconvenient most of the time, but when you are personally on the receiving end of bad actions, you definitely want to have laws in place. That’s why smart people decided there should be laws, even when they aren’t personally in danger.

South Africa’s case isn’t just a test of the Genocide Convention specifically. It’s a test of the entire idea of having a world ruled by laws, rather than ruled by whoever has the most nukes or other weapons. There have been other cases before the international courts that mattered, but there has rarely ever been a case in which the facts were so well-documented and the side with extensive superpower backing was so clearly in the wrong. 

Israel’s response to the Hamas attacks that killed 1,200, including 29 children, was immediate and sustained attacks on Gaza. Since Oct 7, 2023, 30,000 Palestinians in Gaza, whose names are known and listed by health authorities, have been killed. Of those, more than 11,000 are children, and most international human rights and legal organizations insist these documented deaths provide a low and conservative estimate, since many more are likely to be buried under rubble. The Israeli attacks have included numerous targeted attacks on schools, refugee camps, ambulances and hospitals, all of which are banned under international laws of war, regardless of allegations about hidden militant hideouts. 

Given the unwavering military aid to Israel by the United States, South Africa’s case may be the most extreme example yet of a state trying to use law instead of armed force to beat sheer might on the international stage. 

And yet, it is interesting that such a case is up to the ICJ, not the ICC—the court that deals with the rights of states instead of the court that deals with the rights of people. It’s almost as if human rights have to win in a states’ rights game. 

Imagine if the world was run based on the rights of states, instead of human rights. I’ve been told, at length, by those who say Israel has a right to do anything and everything to the Palestinians, that there was never a state of Palestine, so the people of Gaza have no real right to their homes. They should be moved to Egypt and Jordan, the two countries that previously owned that area. Now Israel owns it because it was given to them by the British, who had “right of conquest.” 

That is how the situation plays out under the doctrine of states’ rights. Palestine has no right, since it isn’t a state. The “right of conquest” is something like free market competition in states’ rights. “My ad was better than yours, so suck it up!” When states shift positions due to the right of conquest, people can and should simply be uprooted to compensate. 

We saw a lot of this in the aftermath of World War II. German populations were forcibly expelled from neighboring states. Poland was picked up as a whole and moved several hundred miles to the west on the map. And of course, the state of Israel was created in lands that were already inhabited by others.  

At the time, not much sweat or tears was shed by “the great powers” considering the immense toll of human suffering each of those geopolitical moves entailed. But for the past fifty years, the world has swung at least in rhetoric toward a structure of international laws based on human rights, not states’ rights. States’ rights still exist, but only in so far as they do not egregiously abuse human rights. Even if a state loses a war, the international community is no longer ready to accept collective punishment of the population.

The line on what is a serious enough abuse of human rights to warrant international attention is one that is going to be debated for a long time. But the situation in Gaza isn’t anywhere close to that line. It is clearly a human rights issue rising to the level of international concern. It’s hard to come up with modern examples that are more extreme. 

The current Israeli war in Gaza has made this distinction between states’ rights and individual human rights a stark division in world opinion, much the way the same thing occurred during the American civil war. Those who say the civil war was more about “states’ rights” than “slavery” are not entirely wrong, if you look at it from a bloodless, theoretical court room. It was about both, or it was about this same divide between those who want law to apply to states’ rights first and those who want it to apply to human rights first. 

Just as in the American civil war, WWII and its aftermath, the aspect left unquantified in Israels war in Gaza and largely ignored in the states’ rights debate is human suffering. Suffering is the difference between states’ rights and human rights and the reason human rights must come first for anyone looking beyond the courtroom to the human world. States’ rights do matter to human beings. Many people are affected by any change in state structures. But states themselves don’t suffer pain. Only their people do and people without states bleed and suffer as much as those with states. 

The often-repeated demand that Palestinian or Arab leaders “must agree that the state of Israel has a right to exist” is a direct outgrowth of this division in the concept of international law. It is a demand for does a state’s right to exist, as a state with its borders intact. 

However, it is telling that one does not hear as much about how the Israeli people also have rights to live in peace and safety, no matter how they or their forbearers settled that land. There are human-rights reasons that settlers in hostile territory might focus on the existence of a state as essential to their safety. It is likely that without that state, the human rights of the people would be hard to maintain. But the same is obviously true of Palestinians. States’ rights do influence human rights and the lack of a state to claim states’ rights certainly does. 

The current conflict could be resolved much more efficiently and with less suffering if the major powers of the world were willing to entirely submit themselves to the rule of law based on human rights first and states’ rights second. The only way that anyone anywhere, and not least Israelis and Palestinians, will ever really be able to count on their right to live in peace and safety is if the structures of international law are as strong and well-defended as national laws with the clear priority being securing human rights. 

The ruling of the ICJ in this case is a crucial test to that system of international law and how well or poorly it is upheld will likely have impacts far beyond this conflict for generations. The ICJ has ordered Israel to take steps to ensure that its forces do not commit genocide in Gaza, including prohibiting military operation from targeting civilians, holding accountable any Israeli who does violate the Genocide Convention and improving the humanitarian situation in Gaza. 

Contrary to what many of us lay people thought, the ICJ could not actually declare that Israel was already committing genocide. That was not within the court’s legal possibilities. Such a ruling requires many steps and will take years to fully investigate to the standards of international law. However, the current ruling is binding under international law. 

That said, we are all aware that anything “binding” is only as strong as the structure it is bound to. The past seventy years have provided a series of experiments to see whether our world will be ruled by laws or by whoever has the biggest stick. Laws have failed many times but have also succeeded sometimes. 

This case is extraordinarily well documented, even compared to modern conflicts. At present the Israeli military is poised to attack the southern city of Rafah, where 1.4 million people—a million of them refugees from previous attacks—are packed together with nowhere left to run. If Israel is not held responsible for breaches of the court’s declaration, which have already occurred since the ruling in the storming of hospitals and the bombing of groups of fleeing refugees, the legitimacy of every international structure and law will be called into question, including things like climate change agreements and mutual defense pacts. These conventions could become little more than handshakes, which the strongest and most nuclear-equipped states are free to break any time they choose. 

From a human rights standpoint, the current war between Hamas and Israel is undeniably horrific. And yet, it may be the states’ rights case around it that ensures or destroys human rights for many millions and even billions more people for years to come. From a states’ rights perspective, the implications of how this war has been and will be conducted and what will come after are likely to set a precedent for the kind of world we will all live in.