By Fathima Manappurathuparambil Sharafuddeen
On the 7th of October, 2023, Hamas launched an attack in the southern part of Israel, killing 1200 people and taking with them 250 hostages. IsraeliPrime Minister, Benjamin Netanyahu, then ordered an airstrike in Gaza, along with a total siege of the densely populated area. This was the beginning of an ongoing conflict that the UN had declared a “genocide” on the 16th of September, 2025, almost two years since it began.
But this begs the question – why did it take two years for the UN to declare the conflict a genocide, and is it really enough? The United Nations, formerly known as the League of Nations, was formed on the foundation of a single purpose – to maintain international peace and security. Learning from the mistakes of World War II, several nations came together to form an organization with the promise to not let the future generation see the horror of another world war. But as the genocide continues in Gaza, we are forced to wonder if the UN is living up to its purpose.
Let us take a step back and analyse the stance of the international law in international armed conflicts (IAC), and whether it has indeed failed to maintain the peace and security it promises. According to Article 2 of the UN charter, all members are prohibited “in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purpose of the United Nations”. Article 24(1), on the other hand, states that the UN Security Council acts on the behalf of member states to fulfil their duties. In Article 25, the member states “agree to accept and carry out the decisions of the Security Council” in accordance with the UN charter. And finally Article 51, which states that no article in the present charter can “impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN until the security council has to take measure necessary to maintain international peace and security”.
With these articles in mind, it is easy to say the UN has the authority to interfere in the conflict, and possibly take action against the parties to the conflict (Palestine and Israel). So what is stopping it? It would be unfair to say that UN hasn’t tried. On 8 December 2023, a draft resolution was presented in the Security Council, calling for a humanitarian ceasefire in the Gaza Strip and release of hostages, but it was not adopted due to the negative vote of a permanent member of the Security Council; the United States. And that, is perhaps the first obstacle the UN has to face – the veto powers granted to five permanent members. Including the resolution mentioned above, US has, in total, vetoed five resolutions so far, with the most recent one being in June. Many argue that there are some limits under the international law to the veto power of the permanent members in the UN Security Council. On February 21, 2024, UAE made the following statement – “I wish to invite the Court to consider the following: the obligations to co-operate and to ensure respect for international law carry implications for States in the exercise of their vote on the Security Council. Voting against or preventing the adoption of a Security Council resolution that seeks to put an end to serious breaches of international law cannot be compatible with such obligations.” The statement was made following a veto made by the US on a resolution that could have imposed a ceasefire in Gaza. Unfortunately, this is a common occurrence in the UN, where permanent members have used their veto powers even in the face of atrocity crimes.
Looking over at the International Criminal Court, where on the 3rd of March, 2021, the former prosecutor, Fatou Bom Bensouda, announced the opening of the investigation into the Situation of Palestine, sparking hope that perhaps the legal system has not failed us yet. On 20th May 2024, Karim Khan, the current prosecutor at the ICC filed applications for the arrest warrant for the former leaders of Hamas, Yahya Sinwar, Mohammed DiabIbrahim Al-Masri, Ismail Haniyeh, Benjamin Netanyahu and Israeli Defence Minister YoavGallant, and on 21 November 2024, the ICC issued the arrest warrant for the above mentioned individuals. While the arrest warrants against YahyaSinwar, Ismail Haniyeh and Mohammed DiabIbrahim Al-Masri were withdrawn following their deaths, both Benjamin Netanyahu and Yoav Gallant are still on ICC’s lookout notice.
Unfortunately, the ICC member states have yet to enforce these arrest warrants, with debates continuing about whether heads of states possessed immunity from ICC prosecution. Back when the ICC issued an arrest warrant for the Russian Prime Minister, Vladimir Putin (the first head of state to have an arrest warrant issued against him), US, France and UK praised the ICC for its decision. Now, with the arrest warrants of Netanyahu, the US has doubled down on the ICC. France has made the decision to not arrest the Israeli Prime Minister, claiming he had immunity as a head of state. Mind you, this is the same France that criticized Mongolia for not arresting Putin who had the same immunity.
While ICC has the authority to investigate war crimes in Palestine due to its jurisdiction that extends to Gaza and the West Bank, including East Jerusalem, it does not have the power to detain the accused (such as Netanyahu and Gallant) without help from member states, many of whom choose to not abide by its obligation to cooperate with ICC. The US House of Representatives went as far as to vote, on January 9th, to sanction the ICC and any foreign officials who chooses to investigate or arrest any US citizen, or citizens of any one of its allies.
The scope of jurisdictions, lack of cooperation from member states, and immunity and other diplomatic protection are the major obstacles in ICC’s path to ensuring justice and fairness. Already under heavy criticism for its seeming bias against African and Middle Eastern nations, the ICC is starting to lose it credibility as an upholder of international justice, leaving us wondering about the future of international law.
However, it is not entirely impossible for ICC to overcome these limitations and ensure that all wrong-doers will be held accountable in the eyes of international law. The ICC must navigate the power dynamics and politics with greater resilience. It must overcome the double standard followed by the Western nations seen in the enthusiastic support of ICC’s actions against Russia contrasted with the threats and sanctions that followed the actions against Israel. Moreover, until ICC reduces its dependency on their member states, and sometimes the non-member states, and ensure equality in all cases, the credibility of international law will remain questioned.
Bibliography
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287.
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI.
United Nations Digital Library, Draft Resolution: Humanitarian Ceasefire in the Gaza Strip and Release of Hostages (8 December 2023).
Fatou Bensouda, Statement of ICC Prosecutor Respecting an Investigation of the Situation in Palestine (3 March 2021) International Criminal Court https://www.icc-cpi.int/news.
‘ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals’ (EJIL: Talk!, 6 May 2019) https://www.ejiltalk.org.
EXPLAINER: Why the ICC Arrest Warrant Will Not Be Enforced on Netanyahu as He Visits President Trump (ABS-CBN News, 2024) https://news.abs-cbn.com.
Dapo Akande and Antonios Tzanakopoulos, ‘More Evidence of States Agreeing that There Are Some Limits Under International Law to the Veto Power of the Permanent Members of the UN Security Council’ (Opinio Juris, 22 February 2024) https://opiniojuris.org.
The Legitimacy Trap: Balancing Enforcement and International Cooperation within the International Criminal Court (Yale Journal of International Affairs, 2023) https://yalejournal.org.