By Altaf Hussain Wani
In a world ostensibly governed by international norms and legal frameworks, the machinery designed to protect human rights and humanitarian principles often reveals a stark contradiction: robust in theory yet frequently impotent when confronted with geopolitical realities.
The international human rights and humanitarian law systems, while representing humanity’s highest aspirations for justice, frequently fail to deliver meaningful protection to those most vulnerable, particularly when violations are perpetrated by powerful states or their allies.
The Promise vs. Reality of International Legal Frameworks
The post-World War II era witnessed the emergence of an impressive architecture of international human rights and humanitarian law. The Universal Declaration of Human Rights, the Geneva Conventions, the Genocide Convention, and numerous subsequent treaties and institutions promised a new world order where human dignity would be protected regardless of nationality or circumstance.
Yet today, this machinery often operates with a troubling selectivity. As former UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein noted, “Selectivity and double standards in applying international law cripples the system and undermines its credibility.”
When Justice Meets Power: The Implementation Gap
The implementation gap between judicial decisions and actual compliance reveals the system’s fundamental weakness. Consider the International Court of Justice’s (ICJ) 2004 advisory opinion declaring Israel’s separation barrier in the occupied Palestinian territories illegal under international law. Despite the court’s clear finding that the wall violated Palestinian rights and ordering its dismantlement, the barrier remains standing nearly two decades later, with minimal international pressure for compliance.
Similarly, the ICJ’s 2022 provisional measures in the case brought by South Africa against Myanmar regarding the Rohingya genocide have seen limited implementation. While legally binding, these measures lack enforcement mechanisms when powerful states or their allies choose to ignore them.
Most recently, the ICJ’s January 2024 provisional measures ordering Israel to prevent genocidal acts in Gaza have highlighted this implementation gap once again. Despite evidence of continuing civilian casualties and humanitarian catastrophe, effective enforcement mechanisms remain absent.
Selective Prosecution: Justice for Some
The International Criminal Court (ICC), established to end impunity for the gravest international crimes, demonstrates the selective application of international justice. While the court has primarily focused on African situations, investigations into alleged crimes by powerful nations or their allies face significant obstacles.
The ICC’s preliminary examination into alleged crimes in Afghanistan, including those potentially committed by U.S. personnel, faced fierce opposition from the United States, including sanctions against ICC officials. The investigation has made little meaningful progress despite substantial evidence of serious violations.
Meanwhile, the ICC’s preliminary examination into the situation in Palestine has moved at a glacial pace for years, despite documented patterns of violations. When former Prosecutor Fatou Bensouda finally determined the court had jurisdiction to investigate alleged crimes in the occupied territories, she faced intense political pressure and threats from several powerful states.
Self-Determination Denied: Kashmir and Palestine
The right to self-determination, enshrined in the UN Charter and numerous human rights instruments, remains elusive for many populations living under occupation or disputed governance.
In Kashmir, despite UN Security Council resolutions calling for a plebiscite to determine the region’s status, the people of Kashmir have been denied this fundamental right for over seven decades. India’s 2019 revocation of Article 370, which had granted special status to Jammu and Kashmir, further entrenched direct rule from New Delhi while implementing communication blackouts, mass detentions, and restrictions on movement and assembly. The international community’s response has been largely muted, with economic and strategic partnerships with India taking precedence over human rights concerns.
Similarly, Palestinians continue to live under occupation in the West Bank and under blockade in Gaza, with their right to self-determination consistently undermined by settlement expansion, resource appropriation, and restrictions on movement. Despite numerous UN resolutions affirming Palestinian rights, implementation has been thwarted by geopolitical considerations and the protection afforded to Israel by powerful allies.
Double Standards in Application
The contrast in international response to different humanitarian crises reveals troubling inconsistencies. When Russia invaded Ukraine in 2022, the international community mobilized swiftly with sanctions, arms supplies, and ICC investigations. Yet similar urgency has been absent in other conflicts involving powerful states or their allies.
The Yemen crisis, which has created what the UN describes as the world’s worst humanitarian crisis, continues largely unabated. The devastating humanitarian impact, including widespread famine and civilian casualties, has not triggered comparable international legal consequences.
The Way Forward: Reforming the System
The international human rights and humanitarian law systems require fundamental reforms to address these structural inequalities:
1. Strengthening enforcement mechanisms: Creating consequences for non-compliance with international court decisions, potentially through mandatory UN Security Council action or alternative enforcement pathways.
2. Reducing politicization: Establishing greater independence for international courts and human rights bodies from political influence, including secure funding mechanisms.
3. Expanding jurisdiction: Supporting universal jurisdiction principles that allow national courts to prosecute international crimes regardless of where they occurred or the nationality of perpetrators.
4. Civil society empowerment: Enhancing the role of civil society organizations in monitoring, reporting, and advocacy to create pressure for compliance with international norms.
5. Reforming the UN Security Council: Addressing the structural imbalance created by the veto power that allows permanent members to shield themselves and allies from accountability.
Conclusion
The international human rights and humanitarian law systems offer vital protections in principle but frequently fail those most in need of protection when confronted with power politics. The cases of Palestine, Kashmir, Yemen, and other situations involving powerful states demonstrate how selective application undermines the entire framework’s legitimacy.
As former UN Secretary-General Kofi Annan observed, “When the rule of law is replaced by the rule of force, all of us are diminished.” Until the international community addresses the fundamental power imbalances that allow some states to operate with impunity while others face swift accountability, the promise of universal human rights protection will remain unfulfilled for millions of the world’s most vulnerable people.
The machinery exists to protect human rights globally, but its gears are jammed by the very power dynamics it was designed to transcend. True reform requires not just institutional adjustments but a fundamental recommitment to the principle that human rights protections must apply equally to all, regardless of which powers might be implicated in their violation.
Author: Altaf Hussain Wani – Chairman at Kashmir Institute of International Relations (KIIR).
(The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of World Geostrategic Insights).
Image Source: Concern Worldwide