International Human Rights Mechanisms: “Toothless” or Accountable?
International human rights are necessary but deeply flawed in application because their enforcement is constrained by state sovereignty, inconsistent enforcement, and the difficulty of actually prosecuting perpetrators. Given the array of clashes these legal principles have with different nations’ conceptions of state sovereignty, in many cases the power of these rights to protect people is limited. This critique of the effectiveness of the ICC, ICJ, and international human rights as a whole draws on principles such as the Doctrine of Universal Jurisdiction, the Genocide Convention’s holdings, and methods of accountability for the violation of human rights. The counterexamples to ineffectiveness that will be highlighted are that of the initiatives taken on by the ICC and ICJ to call for provisionary measures, and the primary legal principle that shall be discussed is that of the claim of state sovereignty. A major reason for these limitations is the principle of consent, since international courts still depend heavily on states agreeing to their authority and cooperating with enforcement efforts.
It is important to begin with a clear legal definition of genocide and also to define what constitutes genocide, as well as to explore the historical context: Genocide, as defined under Article II of the Genocide Convention, is “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group” (United Nations 1948). This definition arose out of the Nuremberg Trials, which two years earlier handled the sentencing of high-ranking Nazi officials.. The trials established the precedent that individual actors can be held accountable for crimes against humanity. Interestingly, the Nuremberg Trials quickly sentenced all 19 offenders to pretty extreme consequences.Twelve of them were sentenced to hang while the rest spent either the rest of their lives or many years in prison. Compared to modern international trials, the Nuremberg trials seem decisive and fast.
However, it is crucial to recognize that the legal framework of the 1940s differed significantly from today’s body of laws. Additionally, international law (as per the holdings of the Genocide Convention) requires that genocide means “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…” (United Nations 1948). So, even a burden of evidence is not enough to constitute a genocide. In order to legally warrant any repercussions, there must be proven intent to cause the destruction of a population. Any swiftness to accuse a state of a crime as heinous and ostracizing as genocide could be perceived as an overstepping of a nation’s sovereignty and right to defense.
The existing legal mechanisms to prevent crimes against humanity and genocide are only partly effective because of two major limitations: the aforementioned question of “intent,” and the paradox of state sovereignty. On December 29, 2023, South Africa filed proceedings against Israel at the ICJ under the Genocide Convention, alleging that Israeli military operations in Gaza constituted genocidal acts. The case relied on Article III of the Convention, which criminalizes genocide and also criminalizes incitement, conspiracy, and complicity, and attempts (This became critical to how South African framed its claim.
Not only is intent difficult to prove overall, but it is also especially difficult in the case of international law, given the weight state sovereignty has in the legal global sphere. Israel’s principal defense is self-defense. It argues that its military actions are directed specifically at Hamas as a direct reaction to the October 7 attacks and insisting that Hamas embeds itself within civilian populations. So, the Israeli position bases itself on the right of every nation to protect its own state sovereignty (Human Rights Watch 2024). In this case, Hamas is the threat to Israel’s sovereignty, and they have the right to neutralize it.
Additionally, it is critical to note that South Africa’s case against Israel is before the ICJ because it concerns whether Israel, as a state, violated the Genocide Convention.
If individual Israeli or Hamas leaders were to face personal criminal prosecution, that would fall under the jurisdiction of the ICC, not the ICJ. So, the central issue before the ICJ in any proceeding is not the criminal liability of specific individuals, but whether Israel, a sovereign state, has breached its international legal obligations under the Genocide Convention (United Nations 1948). The distinction underscores both the limits and the significance of the case between South Africa and Israel. Since the Court is tasked with evaluating state conduct within a legal system that strongly protects sovereignty, findings of genocidal intent are particularly difficult to establish.
Perhaps, though, the solution to the many gaps in the upholding of international human rights in the face of crimes such as genocide lies in the dynamic relationship between the ICJ and ICC and each of their respective abilities to influence legal outcomes on their own. Despite their fundamental distinctions, both institutions have the potential to influence each other. The process of “norm production,” as described by Monica Hakimi is where much of the power of the international legal system lies (Hakimi 2020). The ICJ can shape state behavior through provisional measures by imposing binding interim obligations (Leval 2013). While enforcement remains limited, these orders can influence diplomacy, increase reputational costs, and frame the conflict in legal terms that affect broader international responses.
In the case of the Israeli-Palestinian conflict, in January 2024, the ICJ ordered Israel to take steps to prevent acts potentially falling under the Genocide Convention, preserve evidence, prevent incitement, and facilitate humanitarian assistance (Human Rights Watch 2024). The Court later expanded measures as the situation evolved. Importantly, the ICJ did not at that stage decide that Israel had committed genocide; provisional measures are precautionary and do not determine final liability. Similarly, on 21 November 2024, the ICC issued arrest warrants for two senior Israeli officials, Benjamin Netanyahu, the prime minister of Israel, and Yoav Gallant, the former Minister of Defense of Israel. These warrants allege responsibility for the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts during the Gaza war.
Neither proceeding has included a prosecution on the basis of genocide, but nonetheless both institutions have helped construct a legal and normative framework that shapes how states, international organizations, and the public understand and respond to the conflict (Hakimi 2020). By publicly identifying potential violations of international law and assigning legal responsibility to both states and individuals, the ICJ and ICC increase reputational and political costs for any continued abuses. In this sense, their greatest power may not come from immediate or actual enforcement, but in their ability to reproduce and reinforce international norms that define what conduct is unacceptable and create the legal foundation for future accountability.
On the other hand, one could cite that the harsh punishments administered as a result of the Nuremberg Trials did not hold up for the modern application of laws against genocide because the Genocide Convention happened after the Nuremberg Trials. Although principles from Nuremberg were derived and are still used in theory to hold perpetrators accountable, the Genocide Convention is what codified the legal processes for accountability in the international legal order. Additionally, given the severity of the accusation of intent to commit genocide, trials usually take up to ten years to be processed, unlike the Nuremberg Trials (Human Rights Watch 2024). From this perspective, a situation like that of, say, South Africa’s case against Israel on the basis of committing genocide and upholding a regime of apartheid in occupied Palestine does not have any responsibility to adhere to as short of a timeline as Nuremberg. If the legal precedent does not exist post-Nuremberg, then there should not (from this perspective) be an expectation to step outside of existing legal doctrines.
Along with considerations for the severity of such accusations, defendants of the application of international human rights principles would also argue that the the Doctrine of Universal Jurisdiction, a legal principle under the Genocide Convention, already establishes mechanisms that ensure any perpetrators of crimes against humanity such as genocide “ may be heard in courts throughout the world [even] if the defendant cannot be brought to justice in the country where he committed them” (United Nations, 1948). This implicates the global community in holding perpetrators accountable, and the doctrine seems to create a viable path to accountability. This then raises the question of whether the perceived "toothlessness" of international human rights laws stems from how these laws are applied rather than in the mechanisms themselves. If so perhaps a reevaluation of the manifestation of these laws is indeed necessary.
Another widely adopted criticism of international law’s ability to uphold human rights is that its lack of a centralized authority and enforcement mechanism/body mean it is becoming less and less viable in an increasingly advanced and violent world. This problem becomes even more serious because international law leaves major loopholes available to perpetrators and potential perpetrators alike. Take a certain limit to prosecuting war criminals, wherein the International Criminal Court “...may prosecute only if the country of the defendant or the country where the crime was committed has ratified the treaty that created the court, the Rome Statute, or if the UN Security Council recommends prosecution” (Leval 2013). This rule is complex, but it appears as though, generally, genocide isn’t exactly illegal if the perpetrator wasn’t there to agree on its existence within international law. Morally, this concept is suspect at best.
Taken together, these limitations reveal the central paradox of international human rights law: The legal principles designed to protect populations from the gravest offenses ultimately depend on the consent and cooperation of the very states that may be responsible for those abuses. Institutions such as the ICJ and ICC have developed important mechanisms for accountability, and through norm production they can shape global expectations, increase reputational costs, and lay the groundwork for future prosecutions. Yet their effectiveness remains constrained by sovereignty, jurisdictional limits, and the difficulty of proving specific intent in crimes like genocide. International human rights law is therefore neither wholly ineffective nor fully enforceable. Its greatest strength lies in establishing universal standards and creating avenues for accountability, even when immediate enforcement is uncertain. The challenge for the international legal system is not simply to create stronger rules, but to develop the political will and institutional capacity necessary to ensure that those rules are applied consistently, regardless of the power or strategic importance of the states involved.
Works Cited: United Nations. “Convention on the Prevention and Punishment of the Crime of Genocide.” United Nations, 9 Dec. 1948 www.ohchr.org/en/instruments-mechanisms/instruments/convention-prevention-and-punishment-crime-genocide Leval, Pierre N. “The Long Arm of International Law.” Foreign Affairs, 5 Feb. 2013, www.foreignaffairs.com/articles/united-states/2013-02-05/long-arm-international-law Hakimi, Monica. “Why Should We Care About International Law?” Michigan Law Review, vol. 118, no. 6, 2020, pp. 1283–1306, repository.law.umich.edu/mlr/vol118/iss6/17 Human Rights Watch. “Gaza: World Court Orders Israel to Prevent Genocide.” Human Rights Watch, 26 Jan. 2024, www.hrw.org/news/2024/01/26/gaza-world-court-orders-israel-prevent-genocide