Traditionally, international law was regarded as a set of rules developed by states to organize the relations among states. The principles of sovereignty and non intervention on the internal affairs of states were the main principles ruling international law and international relations. This perspective has remarkably changed over the last three decades, when the concepts of humanitarian intervention and international justice have enormously emerged in the international plane.
Malcolm Shaw has pointed out that the dominance of positivism over the 19th century had made states the only concerns for international law “but the gradual sophistication of positivist doctrine, combined with the advent of new approaches to the whole system of international relations, has broken down this exclusive emphasis and extended the roles played by non-state entities, such as Individuals, multinational firms and international institution.” He also added that “The developing concern with human rights is another aspect of [the] move towards increasing the role of the individual in international law.”
In other words, the new developments of international law has reformulated the principle of sovereignty in a way that states cannot any more contend the principle of domestic jurisdiction to prevent the intervention of the international community when there are serious humanitarian reasons. Consequently, the International community has the legal responsibility to protect human rights where there are serious crimes are committed particularly during international or internal conflicts. This protection includes military intervention under certain conditions to protect civilians when local authorities fail to do that, or to use the international criminal law to prosecute those who are responsible for serious violations of human rights and humanitarian law.
However, this new trend has been marred by inconsistency, double standards and political selectivity that have discredited international law. This critical vision is remarkably common in Middle East. To illustrate the point, the international community has responded to the severe human rights crimes in Darfur by referring the whole case to the International Criminal Court (ICC) against the will of the Sudanese government. This is indeed a very significant step to achieve justice, but the same international community has failed in denouncing the human rights crimes that have been committed in the Occupied Palestinian Territories (OPT) or in Lebanon although most of these crimes have been well documented by UN's human rights mechanisms and international human rights organizations. We have also seen recently the refusal of the US and other European states to support the recommendations of the Goldstone’s report, on human rights violations during the Israeli military operation in Gaza, which urged the Security Council to refer the situation in Gaza to the ICC. Furthermore, the crimes that were committed in Iraq during the American illegal military invasion of Iraq in 2003 have gone away without accountability.
The international community is also ready to victimize justice for the sake of politics. For instance, there is an ongoing debate among the members of Security Council to use article 16 of the Rome statute to defer the judicial process of the ICC in Darfur under the justification that criminal justice can impede the peace process between the Sudanese government and the rebellion groups.
I think the current political structure of the international system bears the major responsibility of the distortion of the international community's humanitarian role. The conflicting political interests of the permanent members of the Security Council have remarkably weakened its role to protect international peace and security, and prevent a consistent application of the responsibility to protect doctrine and international justice. As long as States control the decisions and actions of international law, there will be inconsistency and selectivity in applying such humanitarian principles. Finally, the conflict will continue between those who believe in the moral and social functions of international law, and others who regard international law as a tool for achieving the narrow political interests of states.
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