Cut International Law Down to Size: National Sovereignty Trumps Utopian Alternatives

The ongoing International Criminal Court (ICC) and International Court of Justice (ICJ) cases against Israel reveal a problem more fundamental than the mistreatment of Israel. The cases illustrate the dangers of expanding the definition and role of international law beyond its severe limitations to reduce the sovereignty of nations. Ireland’s ICJ intervention highlights the destructiveness of reinventing international law into a utopian solution for the world’s ills.
International law consists of treaties and customary international law, which is the practice of nations out of a sense of legal obligation. No legislature can create law binding on all countries. International law is also not created by experts, real or self-proclaimed, even if they are using expertise and not their own values.
Countries do not have to join treaties and can terminate participation in treaties they have joined. Nations can also choose which portions of customary international law to follow, except for certain peremptory norms.
After the horrors of World War II and the Holocaust, expanding the role of international law and institutions to advance humanitarian objectives may have been well-intentioned. In the ICJ case, Aharon Barak, Israel’s ad hoc judge, described his personal experiences as a Holocaust survivor and his solace in its impact on humanitarian law and institutions:
The Genocide Convention holds a very special place in the heart and history of the Jewish people . . . The rebirth following the Holocaust is the rebirth of the human being, of the centrality of humanity and of human rights for every person. Many international instruments focusing on the rights of the individual were adopted after 1945 . . .”
But this view is utopian. International law helps set parameters and settle disputes between lawful countries committed to following the law. World War II and the Holocaust were the result of geostrategic power balances, hatred, tyranny, and appeasement, not inadequacies of international law.
This remains the case today. International law did not prevent Iran’s proxies from invading Israel on October 7 or Putin from invading Ukraine, and it does not result in “human rights for every person.” International law will not determine whether China invades Taiwan.
And like most utopian projects, the rise of human rights “law” and institutions have turned destructive, as demonstrated by the ICJ and ICC cases against Israel.
The ICC case has numerous flaws. For one, the ICC has no jurisdiction over Gaza because the Palestinian National Authority is not a state. Furthermore, the ICC cannot exercise jurisdiction over Israelis because Israel is not a signatory to the ICC treaty.
The other ICC flaws are even more revealing. The ICC ignores its own complementarity requirement, the rule that it must defer to countries whose own justice systems are addressing military misconduct. Israel has an extremely strong such system. Although this rule is rational in theory, it is one of the most dangerous aspects of the ICC statute because the threat of losing complementarity shifts governance to judges and legal officials from elected officials. Ironically, this is demonstrated by Israel, despite the ICC’s blatantly ignoring complementarity in its case against Israel.
Led by Aharon Barak, Israel’s judiciary and legal bureaucracy have seized enormous power from elected governments in what Barak himself has described as a “constitutional revolution.” Attempts to even partially restore the authority of elected officials are met with arguments as to how this would cause Israel to fail ICC complementarity. Although these arguments are without merit—Israel would still have a strong judicial system even if some power were shifted back to its political leaders, and in any case the ICC has ignored complementarity—they have helped protect Barak’s revolution.
More fundamentally, the underlying ICC charges, like those at the ICJ, mock reality and law. The cases charge that Israel’s self-defense in the war started by the Hamas invasion of October 7 constitutes genocide, starvation, and murder.
The Fourth Geneva Convention does not require countries to provide assistance to civilians if the aid may advantage enemy combatants. That is the case with Hamas. And Gaza does not have a starvation crisis.
Israel has been taking extraordinary steps to protect civilians—well beyond those taken by other countries out of a sense of legal obligation, and even exceeding those taken by other militaries (such as the U.S.) that explicitly surpass legal obligation.
The ICC and ICJ cases are based on “law” consisting of anything imagined by “expert” NGOs and “courts” regardless of the practice of nations. Ireland gave this away when it urged the ICJ to reinterpret the meaning of “genocide” under the Genocide Convention.
Hamas’s use of human shields illustrates the destructiveness of relying on international law to police war. Hamas uses human shields as its primary military strategy, which has increased death and suffering both in Gaza and Israel, because it believes Israel’s adversaries, allies such as the United States, and even Israeli legal bureaucrats will use so-called international law to handcuff Israel’s military. Absent that confidence, Hamas would not have invaded Israel on October 7.
Inventing new “law” to handcuff law-abiding countries serves no humanitarian purpose and reveals the folly of expanding international law. The suffering caused by war is not due to a lack of international law, but it is often exacerbated by a utopian view of its omnipotence. The United States should renew its focus on restoring the primacy of the sovereignty of nations by limiting the scope and role of international law.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].