International Law a la Carte and Enforcing United Nations Rulings

03.01.2025 Alfred de Zayas

Two articles by Alfred de Zayas are published here below. Both articles have previously appeared in Counter Punch and are to be found here: https://www.counterpunch.org/2024/12/16/international-law-a-la-carte/

https://www.counterpunch.org/2024/12/06/enforcing-united-nations-rulings/

International Law a la Carte

International law is by nature multilateral. Its ontology is universal and cannot be interpreted or applied selectively, today this way, tomorrow somewhat differently — or not at all. In some cases violations of international law are loudly denounced by the international community; in other circumstances, comparable violations are followed by a deafening silence. Indeed, the “crime of silence” implies tacit consent. Qui tacet consentire videtur. Individuals and States can thereby become complicit in the crime. If not legally, certainly morally.

Experience in the United Nations and other international institutions illustrates how the vast body of international law with all of its treaties and protocols suffers from an acute bout of double standards, both in the interpretation and application of norms. As politicians and journalists invoke international law à la carte, widespread cynicism sets in, resulting in a significant loss of the authority and credibility of the institutions

The UN Charter binds all States and peoples. International treaties, whether bilateral or multilateral, bind the States parties and should be applied in good faith according to the principle pacta sunt servanda (Vienna Convention on the Law of Treaties, article 26[1]). Whereas human rights are juridical, justiciable and, in principle, enforceable, the United Nations General Assembly and the Human Rights Council have a track record of applying international law selectively. Debates in the GA and HR Council are characterized by political instrumentalization of the facts and by what I would call “fake law”, since many diplomats simply invent “the law” as they go along. Enforcement becomes a farce, when it is done in the service of hegemons and not of humanity at large. When judgments and advisory opinions of the International Court of Justice are not enforced, the “rule of law” itself suffers.

We can and should demand professionalism and objectivity from the institutions established to protect our rights. These institutions should ensure accountability for violations of international law by governments and non-State actors, including transnational corporations. The General Assembly and Human Rights Council should take appropriate measures to ensure that recourse and appropriate remedies for violations are made available to the victims.

Priorities are crucial in all human endeavors. What is on the agenda of the GA and HR Council? What is being discussed, what is being deliberately ignored? It is up to us to ensure that the institutions function according to their terms of reference, that there are checks and balances, that political action is ethical, not amoral, short-sighted and utilitarian. At least in democracies the electorate can demand transparency, ethics and justice.

Responsibility to Protect

If the “doctrine” of Responsibility to Protect (R2P) means anything (GA Resolution 60/1 of 24 October 2005, paragraphs 138-9), then it should have been invoked decades ago in the context of the Israeli denial of the right of self-determination of the Palestinian People, in the context of mass evictions, arrests, expulsions and ethnic cleansing, the Nakba. R2P should have prevented the tragedy unfolding since 2020 in the Armenian Republic of Artsakh, better known as Nagorno Karabakh. It should have been applied on behalf of the Sahraouis of Western Sahara, the Igbos and Ogonis of Biafra, the Tamils of Sri Lanka, the Kurds of Turkey, Iraq and Syria.

Without a doubt, many politicians today deserve being indicted and prosecuted by the International Criminal Court, surely those guilty of the crimes of aggression, war crimes and crimes against humanity in Afghanistan and Iraq since 2001. Notwithstanding legal briefs filed with the ICC Prosecutor since 2004, no one was ever indicted. An investigation started by Chief Prosecutor Fatou Bensouda[2] was terminated by her successor Karim Khan[3]. Over a period of 23 years since its establishment in 2002, the ICC has displayed a certain bias, indicted Africans, and enemies of the US and EU, including Vladimir Putin[4]. That is why it was comparable to an earthquake when Prosecutor Khan asked for arrest warrants against Israeli Prime Minister Netanyahu[5] and Hamas leaders. This may eventually save the ICC from total collapse of its tenuous credibility.

Self-determination of peoples

A Special Session of the Human Rights Council on the issue of the self-determination of peoples would be appropriate, since the right of self-determination of peoples constitutes a jus cogens norm of international law, and thousands of human beings in all continents are being denied this right and many are killed in the attempt to claim it. It must be well understood that the right of self-determination laid down in Articles 1 and 55 of the UN Charter, in Chapters XI and XII of the Charter, in common article 1 of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights is not limited to decolonization, but extends the right to autonomy and/or independence to all peoples. States are not only obliged to refrain from hindering this right; they have a duty to pro-actively implement it. Who are the rights holders? As I proposed in my 2013 report to the General Assembly[6], the United Nations should accept petitions from all peoples deprived of self-determination, those living under foreign occupation, those enduring Apartheid, etc. Among the many aspirants to self-determination we recognize the French of Quebec, the Scots, the Catalans, the Corsicans, the South Tiroleans, the Kurds, the West Papuans, the Rapa Nui, the native population of Hawaii, the indigenous peoples of Alaska and those living in “reservations” in the United States, the Mapuche of Chile and Argentina, the Igbos of Biafra, the Bubis of Equatorial Guinea, the Luchu of Okinawa (Ryukyu islands illegally annexed by Japan in 1880).

Progress and Retrogression

Progress and retrogression characterize the history of international law and human rights. Today the world is in chaos, but not more so than in the 18th. 19th and 20th centuries. At least we are not burning witches or massacring indigenous Hopi, Iroquois, Mohawks, Sioux, Taínos, Arawaks, Quechua — the slave trade is abolished, colonialism is drastically reduced. We have seen a phenomenal codification of legal norms, the UN Charter, the UDHR, the establishment of regional human rights courts. We hail the growing recognition of the rights of half the population of the planet – women, the measures taken on behalf of persons with disabilities. We welcome the gradual abolition of the cruelty of “capital punishment”. Yet, there is also significant retrogression in many fields, including the erosion of the concept of Peace as a Human Right, the backsliding from General Assembly Resolution 39/11 of 1984. Today there is scarce protection of the right to know, the right to access truthful information, the right to freedom of opinion and expression. We see censorship by governments and the private sector, the blocking of RT and Sputnik by the EU, the Orwellian new Digital Services Act, the brazen indoctrination practiced by the media, the excesses of “cancel culture”, the epidemic of self-censorship, the social acceptance of Islamophobia, Russophobia and Sinophobia. the crimes committed against 25 million victims of human trafficking, including 3.4 million children. Serious retrogression is evident in the weakened protection of family life and family values, the attacks on the concept of the family and parental authority, the denigration and ridicule of religious beliefs.

Retrogression is also apparent in the practices of institutions established to protect our rights. Many institutions have been hijacked for geopolitical and ideological purposes. Quis custodiet ipsos custodes? (Iuvenalis, 6^th Satire, verses 347-48) Who guards over the guardians?[7] Institutions such as the UN Human Rights Council, ECHR, IACHR, OPCW often let themselves be hijacked by major powers and thus betray their mandates, weaponizing human rights instead of devising preventive strategies and mechanisms to promote and protect human dignity, to ensure that there are recourse and adequate remedies for the victims. Only we can be the guardians. While we realize that governments and the media lie to us, that they suppress crucial information, we — as citizens of democratic countries — must push back and reclaim democracy. We do not need any Ministry of Truth as in 1984. But are we not already living in the dystopia of Huxley’s Brave New World ?

Prevention or Punishment?

Among the gravest instances of retrogression is the Western obsession with punishment, the primitive lex talionis, that self-righteousness that invites us to lapidate the adulteress[8], the arrogance of “lawfare” against dissidents, the persecution of whistleblowers.

If Christianity taught us anything, it is that we must forgive to be forgiven: et dimite nobis debita nostra sicut et nos dimitimus debitoribus nostris[9]. Yet, the politicians and some mainstream ngo’s have transformed the notion of “amnesty”[10] into a curse word, as they have transformed “appeasement”[11] into an insult, although in the nuclear age the only rational approach in international affairs is conflict-prevention through diplomacy, give and take, quid-pro-quo, compromise.

Punishment is always after the fact, ex post facto. Punishment does not make the victims whole. Very often violations of international law and human rights are irreparable. What is crucial is to prevent violations of international law and human rights, to set up mechanisms of “early warning” so as to address grievances before they degenerate into violence and grow into a threat to the peace and security of mankind. Essential to conflict-prevention is confidence-building, engaging in dialogue, building bridges, creating the conditions for peace. Si vis pacem, para pacem (if we want peace, we must proactively appease). Amnesties are not bad per se. Sometimes amnesties can pave the way to reconciliation. Revenge is incompatible with the acquis of civilization. Punishment is not a wise or civilized answer to problems.

Hope for the Future

Is there hope for humanity? Of course there is! It is in our hands to demand pro-active peace making from our governments, to demand more professionalism and objectivity from the United Nations and other international bodies.

Knowledge of the root causes of conflict facilitates the prevention or war. We need to reject provocations and escalations. We need to develop the faculty of self-criticism so as to correct our own mistakes before we go around pointing fingers at others. We must practice international solidarity, applying international law in good faith and not à la carte.

Our resolution for 2025 should be to continue waging peace, speaking truth to power, strengthening the United Nations Charter as a world constitution, rediscovering the spirituality of the Universal Declaration of Human Rights.

Notes.

[1] https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

[2] https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-following-appeals-chambers-decision-authorising

[3] https://www.aljazeera.com/news/2021/12/6/icc-prosecutor-defends-dropping-us-from-afghan-investigation

[4] https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and

[5] https://news.un.org/en/story/2024/11/1157286

[6] https://documents.un.org/doc/undoc/gen/n13/421/23/pdf/n1342123.pdf

[7] https://onlinelibrary.wiley.com/doi/10.1111/ajes.12542

[8] John 8, 1-11. https://www.biblegateway.com/passage/?search=John%208:1-11&version=NLT

[9] Mathew 6, 9-13 https://www.biblegateway.com/passage/?search=Matthew%206%3A5-15&version=ESV;NIV

[10] Alfred de Zayas, “Amnesty Clause” and “Westphalia, Peace of” in R. Bernhardt (ed.) Encyclopedia of Public International Law, North Holland, Amsterdam 2000.

[11] https://www.counterpunch.org/2024/08/09/appeasement-reconsidered/

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Enforcing United Nations Rulings

The UN Charter, adopted on 24 October 1945, has not lost its relevance in the 21^st century. In fact, we need the United Nations more than ever, because the Charter constitutes humanity’s only rules-based order, and its best hope to build a peaceful modus vivendi that will facilitate development and prosperity for everyone on the planet.

The UN General Assembly remains the most representative and least intimidating forum where diplomats can exchange points of view and approaches, where they can craft viable compromises. But 79 years after the adoption of the Charter, new realities have emerged that are not properly reflected in the membership of the UN Security Council. Already in 2005 UN Secretary-General Kofi Annan proposed in his report “In larger Freedom” an expansion of the SC from 15 to 24 members.[1]

I endorsed Annan’s proposal in my 2013 report to the General Assembly, submitted in my capacity as Independent Expert on International Order. I formulated reform options, and laid out a plan of action how to gradually phase out the veto power in the Security Council, by amending, not abrogating, article 27 of the Charter [2].

If and when the Charter is so modified, the States should also agree on the establishment of enforcement mechanisms beyond those foreseen in Chapter VII of the Charter, providing for the possibility of delegating or outsourcing certain functions to specialized agencies like the ILO, UNESCO, UNICEF and WHO with hands-on experience on the ground.

Among the amendments that should be considered is the addition of a clause requiring countries to incorporate the Charter into their respective national constitutions and adopt enabling legislation granting domestic legal status to international judgments and decisions, so that local judges can actually order their implementation.

In other words, international law and jurisprudence should become part of the national legal order. For instance, citizens should be able to directly invoke the provisions of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), the Convention against Torture (CAT), the International Convention on the Prohibition and Punishment of the Crime of Apartheid [3], the Convention on the Prevention and Punishment of the Crime of Genocide [4], etc.

Moreover, citizens should have standing in local courts to demand from their governments that they abide by the fundamental commitments undertaken pursuant to the UN Charter, e.g. to settle disputes by peaceful means and diplomacy [5], not to deliver lethal weapons to countries committing war crimes. In a few States like the Netherlands, every citizen can invoke the ICCPR directly and initiate proceedings against the government for the delivery of weapons to a genocidal country [6].

Law without enforcement loses its authority and credibility. Enforcement, however, presupposes a mental disposition to accept and implement judgments and advisory opinions of the ICJ [7] and other competent tribunals, whether or not the State agrees with the rulings or their rationale. That is the essence of civilization: to accept that in every dispute there are valid arguments on all sides and that the competent judicial instance possesses authority to decide. States have a duty to respect judicial decisions in good faith, and not try to weasel out of their treaty obligations. Selective enforcement of ICJ judgments and Orders, selective implementation of Resolutions of the GA and SC, selective compliance with recommendations of UN bodies undermine the international order.

Enforcement should be understood as a self-evident component of the social contract, the rule of law, civilization. It should be accompanied by incentives, advisory services and technical assistance provided in international solidarity [8], and not confused with punishment or the imposition of “sanctions”. It requires the cooperation of non-state actors including transnational corporations, which have become subjects of international law, and civil society organizations.[9]

“Exceptionalism”[10], as practised by some of the P5 Security Council members, has been rejected by a majority of States in yearly UN Resolutions that emphasize the Charter obligation to respect the sovereign equality of States and to promote the right of self-determination of peoples. It is inacceptable that in the 21^st century one-third of humanity, billions of human beings are subjected to illegal unilateral coercive measures (UCMs), which constitute collective punishment and a vestige of colonialism.

Every year the GA condemns UCMs, most recently in Res. 78/202 of 19 December 2023 [11]. Similarly, the UN Human Rights Council [12] condemns them, every year, e.g. in resolution 55/7 of 3 April 2024 [13] . Billions of human beings continue to suffer the consequences of UCMs, weaponization of human rights and blatant double standards. Exceptionalism is an affront against the very ontology of justice and frequently degenerates into what one may call “lawfare” against certain countries and individuals. In a very real sense, exceptionalism constitutes a revolt against international law.

Among the manifestations of exceptionalism we think of the US imposition of “sanctions” on the International Criminal Court. In 2020 the ICC Chief Prosecutor, Fatou Bensouda [14], was “sanctioned” for daring to open an investigation into war crimes by the US and Nato forces in Afghanistan and Iraq. This emblematic example of contempt for international law and international judicial institutions was duly criticised by Amnesty International [15] and Human Rights Watch [16].

This exceptionalism entails not merely the absence of willingness to enforce ICC judgments, but an animus to intimidate and punish a UN judicial institution. This is war on the UN, and now the incoming US Senate majority leader has threatened the ICC with sanctions for seeking an arrest warrant against Israeli Prime Minister Benjamin Netanyahu.[17] In spite of this outrageous threat, the ICC did issue arrest warrants against Netanyahu and his former Defence Minister Yoav Gallant [18] on 21 November 2024. The ICC really had no choice. Had it failed to do so, it would have lost the little authority and credibility it still enjoys. Already a number of States including Canada, France, the Netherlands and the United Kingdom have expressed that they will respect the arrest warrants [19]. By contrast, France and Hungary have stated that they would refuse to arrest Netanyahu. In my opinion, it would be better for these countries to denounce the Rome Statute and step out of the system of international justice, rather than pretending that they are still members of the club.

Shortly after the ICC issued the arrest warrants, the US government condemned them [20], and Secretary of State Antony Blinken suggested that the Biden Administration was willing to work with Congress to adopt sanctions against members of the ICC and come up with a response to the World Court [21]. US Republican Senator from Arkansas Tom Cotton posted on X. “The ICC is a kangaroo court and Karim Khan is a deranged fanatic. Woe to him and anyone who tries to enforce these outlaw warrants. Let me give them all a friendly reminder: the American law on the ICC is known as The Hague Invasion Act for a reason. Think about it”[22]. US Republican Senator Lindsay Graham posted: “The International Corrupt Criminal Court has acted in the most absurd and irresponsible manner possible by issuing arrest warrants against the Prime Minister and former Defence Minister of Israel while there is a serious cloud of allegations hanging over the prosecutor who sought these warrants … The Court is a dangerous joke. It is now time for the U.S. Senate to act and sanction this irresponsible body”[23].

This exceptionalist mindset was already evident in 2002, when the US “unsigned”[24] the Statute of Rome, during the George W. Bush administration, and the US Congress adopted the so-called “Hague Invasion Act”[25], which empowers the United States government to “free its allies from the clutches of the ICC”[26], using all “necessary and appropriate” means.

Object and Purpose of the United Nations Organization

The Purposes and Principles of the Organization are laid down in articles 1 and 2 of the Charter. Its three pillars are peace, development and human rights. Among the jus cogens obligations assumed by States are the respect for the sovereign equality of States, the recognition of the right of self-determination of peoples, the commitment to settle differences by peaceful means, the prohibition of the use of force or the threat thereof, and the prohibition of interference in the internal affairs of States. These erga omnes obligations are binding on all member States

We observe retrogression in the implementation of norms, both domestically and internationally. In particular, governments at war have massively curtailed the enjoyment of human rights, although the application of human rights norms and human rights treaties becomes all the more crucial in times of armed conflict. And even in countries not at war, the existence of wars elsewhere has been misused as a pretext to curtail freedom of opinion and expression, hitherto considered acquis of civilization [27].

Bearing in mind that many ICJ judgments and advisory opinions are not being complied with, experts are pondering how to reverse the trend of international outlawry, how to return to a commitment to enforce the rulings of the highest UN judicial bodies — and not just those that governments like.

As long as the great powers take international law à la carte, it will not be possible to enforce the UN Charter and the rulings of its organs and institutions. It is time for the global majority in Latin America, Africa and Asia to rise up and demand in the UN General Assembly that the great powers abide by their legal commitments under the Charter. It is time to reactivate the “Uniting for Peace” procedure [28] and enforce a ceasefire in Ukraine, Gaza and Lebanon, and in other conflicts less mediatized in the West, including Yemen and Sudan.

The problem of non-enforcement of UN resolutions and ICJ judgments is not new. The demise of the League of Nations was partly attributable to the absence of enforcement mechanisms in the Covenant of the League of Nations [29] (1920-1946). This contributed to the outbreak of the Second World War [30]. There were many factors involved, including the imbalances of the Treaties of Versailles, St. Germain and Trianon, which made a mockery of Woodrow Wilson’s 14 points and, especially of the right of self-determination of peoples, which was granted to the Slavic populations of Czechoslovakia, Poland and Yugoslavia, but denied to the German populations of Bohemia, Moravia, Danzig [31], Königshüte, Kattowitz, Posen, and also denied to the Hungarian populations of Romania, Slovakia and Ukraine. In order to partly mitigate these glaring injustices, the Paris Peace Conference provided for a minorities protection system [32], yet the promised protection proved illusory. Thousands of petitions in the archives of the League of Nations [33] in Geneva document how gravely the rights of minorities were violated by the new rulers and how, in spite of judgments by the Permanent Court of International Justice [34], the minorities were deprived of effective remedies. In 1934 Poland unilaterally withdrew from the Minorities Rights Treaties [35], while Czechoslovakia violated it in total impunity [36].

Enforcement of UN Rulings

Pursuant to article 25 of the UN Charter “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” However, there are many “hard law” Security Council Resolutions that remain unenforced. Take, for instance resolution 242 of 22 November 1967 which stipulates:

“The Security Council… 1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) “Withdrawal of Israel armed forces from territories occupied in the recent conflict; (ii) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force…”. Adopted unanimously at the 1382nd meeting”[37] .

57 years after Resolution 242, we realize that successive Israeli governments have systematically flouted the letter and spirit of Resolution 242 and all subsequent resolutions. This serial violation of international law has been possible because of the misuse of the veto power in the Security Council by the United States [38]. In this context it should be stressed that the Orders issued by the ICJ pursuant to article 41 of the ICJ Statute are legally binding. Yet, all the Orders issued by the ICJ in South Africa v. Israel have been blithely ignored.[39]

Genocide is occurring before our eyes, and some countries have become complicit in the genocide by providing military, economic, political, diplomatic and propagandistic support to the government of Israel. Even international organizations like the European Union have become complicit in the genocide [40].

The very fact that the United Nations institutions have tolerated an Apartheid regime in Israel for seven decades and that the Organization has been incapable to stop the ongoing genocide in Gaza has resulted in a significant reputation loss by the United Nations. This explains why an increasing number of politicians and journalists in Latin America, Africa and Asia perceive the United Nations as being in the service of the United States, the European Union and Israel, and not in the service of humanity [41].

Not even an appeal to the International Court of Justice has resulted in a change in the policies of the State of Israel vis-à-vis the right of self-determination of the Palestinians. Israel brazenly violated the Advisory Opinion of 9 July 2004 [42] and has rejected the Advisory Opinion of 19 July 2024 [43]. In the 2024 Opinion the ICJ concluded “that the State of Israel’s continued presence in the Occupied Palestinian Territory is unlawful”, further that “the State of Israel is under an obligation to bring to an end its unlawful presence in the Occupied Palestinian Territory as rapidly as possible”, further that “the State of Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the Occupied Palestinian Territory”, further that “the State of Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned in the Occupied Palestinian Territory.” The strong endorsement of the Advisory Opinion by the UN General Assembly [44] has not moved Israel to change its policies. It is a disgrace that 14 States actually voted against the GA resolution. One can legitimately ask how any member of the United Nations could oppose the implementation of an ICJ Advisory Opinion? This constitutes a separate and distinct violation of the UN Charter by those States.

Predictably, Israel has failed to implement the ICJ ruling of 19 July 2024, confirming the diagnosis that Israel is in open rebellion against international law and the ICJ, and that the United States and a number of European States are complicit. This rebellion adversely impacts the authority of international judicial institutions and questions the viability of international law itself. At the very least, the General Assembly should adopt a resolution withdrawing the accreditation of Israeli diplomats, as it did in 1974 when it suspended South Africa, whose delegates were stripped of their right to vote in the United Nations because of its consistent disregard of ICJ rulings and General Assembly resolutions condemning Apartheid.[45]

Part of the problem associated with non-implementation of ICJ rulings, is that only the Security Council can sanction States for non-compliance, and any of the five permanent members of the Security Council United Nations can veto any resolution ordering enforcement. More generally, with regard to other United Nations pronouncements, only Security Council decisions and resolutions are deemed “hard law” and considered legally binding. Only the Security Council has the authority to enforce them under Chapter VII.

By contrast, General Assembly Resolutions are deemed to be “soft law” and are strictu sensu not legally binding. Thus, they are all too frequently ignored. The United States has flouted 32 GA Resolutions on the lifting of the US embargo against Cuba, although these resolutions were adopted by huge majorities. The most recent resolution was adopted on 30 October 2024 by a vote of 187 in favour and only two against [46]: the United States and Israel. One remembers that during the second term of President Barak Obama, the GA resolution was adopted by a vote of 191 in favour and two abstentions: the United States and Israel [47]. More “universal” than this is hardly conceivable. And yet, the embargo was not lifted and the UCMs imposed by the United States on Cuba have been intensified.

Among possible push-back measures that States could take I have proposed that a consortium of States move the General Assembly pursuant to article 96 of the Charter to request the ICJ to issue an Advisory Opinion on the questions whether UCMs that demonstrably kill thousands of people worldwide [48] constitute a “crime against humanity” within the meaning of article 7 of the Statute of Rome, what is the level of complicity of third parties and transnational corporations and what would be an appropriate level of compensation that the States imposing UCMs owe to the victims.

Supremacy of the UN Charter, neutrality and professionalism of the secretariat

Bearing in mind that the UN Charter was conceived as a world constitution that operates on the basis of multilateralism, it is crucial for States to return to the practical recognition of the supremacy of the Charter as laid down in its Art. 103, which stipulates: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”[49]It is time for the General Assembly to ask the ICJ to rule that the Charter takes precedence over all treaties, including the Treaty of the North Atlantic Treaty Organization that pretends to usurp the powers and functions of the Security Council.[50]

The authority and credibility of institutions like the United Nations, the ICC, the OPCW depend on their neutrality and independence as honest brokers. Their credibility also rests on the objectivity and professionalism of their secretariats. When it is perceived that the institutions established to defend our rights are not living up to the expectation of neutrality and professionalism, the trust given to them by the world community diminishes. Iuvenal’s Sixth Satire posed the question succinctly “quis custodiet ipsos custodes” (verses 347-48), who will guard over the guardians? If the institutions are not truly independent but serve the interests of the hegemons, the “clients” of these institutions will sooner or later abandon them, will no longer believe in their pronouncements, and will be even less inclined to implement their rulings and resolutions [51].

The Information War: fake news, fake history, fake law [52]

A precondition to the implementation of the UN Charter and the rulings of UN bodies is an informed society, informed politicians and diplomats, a political culture of objectivity, transparency and accountability. Governments spend billions of dollars in an attempt to deceive the world about their geopolitical interests, about the facts surrounding armed conflict, about the possibilities of negotiation under the UN Charter. Associated with fake news, we also observe the proliferation of false historical narratives and phoney interpretations of international law. There is widespread censorship and self-censorship.

Yet another problem is that of government secrecy, which since time immemorial has been an enabler of the gravest violations of human rights and international law, including genocide.[53] In a democratic society under the rule of law, it is necessary to ensure that the population has access to all pertinent information. This is why I called in my reports to the General Assembly and in numerous press releases for the adoption of a Charter of Rights of Whistleblowers [54] that would give them protection from persecution and lawfare and in the future would prevent the gross human rights abuses committed by the US, UK, Sweden and Ecuador against Julian Assange.

Conclusions

International order depends on agreed standards, objective institutions, checks and balances, transparency and accountability. Enforcement is key to maintaining the authority and credibility of any system of governance or institutions. While enforcement of domestic laws can be achieved more readily in local courts, the implementation of international rulings and judicial decisions poses formidable problems.

The United Nations apparent inability to assert its authority has led to a significant crisis of legitimacy. Indeed, over the past 30 years the major powers have done what they saw fit, kept the United Nations weak and thereby rendered it nearly irrelevant. In 1999 NATO carried out an illegal war against Yugoslavia, a UN member state, without invoking article 39 of the UN Charter or seeking a Resolution from the UN Security Council under Chapter VII. This was sheer aggression and a “crime against peace” within the meaning of Article 6a of the Statute of the International Military Tribunal at Nuremberg and the subsequently adopted Nuremberg Principles [55].

The fundamental principle of international law concerning the territorial integrity of states (article 2) was not only violated by NATO in 1999, it was fatally weakened. Far from defending the principle of territorial integrity, NATO deliberately rampaged to destroy it. This gave rise to what we may call “precedents of permissibility”[56].

Again, in 2003, the “coalition of the willing” flagrantly violated article 2 of the Charter when it engaged in a criminal aggression against the Iraqi people, an orchestrated, deliberate revolt against the UN Charter and international law. With good reason UN Secretary General Kofi Annan called the Iraq war “illegal”.[57]

What is civilization but an agreement to live together [58] in peace on the basis of a constitution and a social contract (Rousseau), which today means the UN Charter. The measure of civilization, however, is not only the existence of laws, competent administration and judicial institutions, transparency and accountability — but also rests on the reliable and predictable operation of enforcement mechanisms.

Civilization is another word for the “rule of law”[59] and entails respect for judicial pronouncements and a common commitment to abide by judicial rulings. Civilization is reflected in the UN Charter, the UNESCO Constitution, the Statute of the International Court of Justice. But the “rule of law” must gradually evolve into the rule of justice [60].

In the landscape of the 21^st century, in the post-Cold War period, characterized by emerging multipolarity, what is most needed is a dialogue of civilizations and a readiness to accept others as potential friends and partners and not a priori as potential enemies. What is necessary is checks and balances, a commitment to the rule of law and the necessity to evolve with the times. What destroys civilization is abstruse ideologies, contempt for the law and a self-righteous attitude of being above the law, what we know today as “exceptionalism”.

Recommendations

What can we propose to the international community by way of concrete, pragmatic, implementable measures? We can begin by educating civil servants and citizens about the necessity to strengthen the rule of law at all levels. It sounds self-evident, but the rule of law is not self-executing. It needs committed politicians and citizens to sustain it, competent tribunals and a readiness to implement judicial decisions.

A Global Compact on Education for Peace through Law [61] is desirable, but that will not bear fruit in the immediate future. Right now, it would be practicable to undertake a general strengthening of the regional courts, strengthening the ICJ, adopting enabling legislation so that international rulings have status in domestic courts and are ipso facto implementable by local judges. In fact, every treaty should be enhanced by the addition of a clause concerning its enforcement and a clause establishing recourse and remedies for its violation. The old Latin maxim ubi ius, ibi remedium is axiomatic: where there is law, there must also be implementation.

With regard to the ongoing genocide in Gaza, the General Assembly should adopt a “Uniting for Peace” Resolution and authorize blue helmets and peacekeepers to maintain a ceasefire. The precedents of General Assembly involvement in the Korean War and in the Congo could be invoked. More recently the General Assembly adopted the “Responsibility to Protect”[62] doctrine, reflected in paragraphs 138 and 139 of Resolution 60/1 of 24 October 2005. If there was any situation in the world that required action on the basis of R2P, it is the relentless massacre of the civilian population in Gaza.

Another tool to achieve implementation of UN rulings is strengthening the voice of civil society. Amnesty International, Human Rights Watch, PEN International can contribute significantly to the international consensus building that would result in pressure on governments to do what their electorates demand from them. Activism for the rule of law is an ingredient in enabling enforcement across the board.

Already in 2013, I participated at a civil society conference held in Brussels on the establishment of a peoples’ parliamentary Assembly. I commented: “A World Parliamentary Assembly functioning outside the United Nations, or a United Nations Parliamentary Assembly set up as a subsidiary body of the General Assembly pursuant to article 22 of the UN Charter, could start initially as a consultative body and gradually develop into a legislative assembly.” My conclusion was that such an Assembly should be inclusive and open for participation of parliamentarians of all UN Member States and observer States, and also provide for the participation of representatives of indigenous peoples, unrepresented peoples and peoples living under occupation.

As the late UN Secretary-General Boutros Boutros-Ghali said, “we need to promote the democratization of globalization, before globalization destroys the foundations of national and international democracy…The establishment of a Parliamentary Assembly at the United Nations has become an indispensable step to achieve democratic control of globalization.”[63]

Notes.

[1] https://digitallibrary.un.org/record/550204?v=pdf

[2] https://documents.un.org/doc/undoc/gen/n13/421/23/pdf/n1342123.pdf. See also Joseph Schwartzberg, Transforming the United Nations System, United Nations University Press, Tokyo, 2013.

[3] https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf

[4] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-prevention-and-punishment-crime-genocide

[5] https://www.commondreams.org/opinion/ukraine-war-diplomacy

[6]https://apnews.com/article/netherlands-court-f35-israel-b33608b054a33fbacc518395b53b74e8

https://www.ohchr.org/en/press-releases/2024/02/arms-exports-israel-must-stop-immediately-un-experts

[7]Sanja Sarraf, Enforcing International Law: An Analysis of ICJ Decisions https://ijcrt.org/papers/IJCRT2304409.pdf.

Shany, Y. (2007). Assessing the Effectiveness of International Courts. Journal of International Law and Politics, 40(4), 897-924.

[8] https://www.ohchr.org/sites/default/files/documents/issues/solidarity/reviseddraftdeclarationrightInternationalsolidarity.pdf

[9] https://www.oxfordbibliographies.com/display/document/obo-9780199796953/obo-9780199796953-0049.xml

[10] https://www.counterpunch.org/2024/09/25/exceptionalism-and-international-law/

[11] https://documents.un.org/doc/undoc/gen/n23/423/58/pdf/n2342358.pdf

[12] https://www.ohchr.org/en/unilateral-coercive-measures

UN Charter, UN Credibility and Unlawful Unilateral Coercive Measures

[13] https://documents.un.org/doc/undoc/gen/g24/058/92/pdf/g2405892.pdf

[14] https://www.bbc.com/news/world-us-canada-54003527

[15] https://www.amnestyusa.org/press-releases/iccsantions/

[16] https://www.hrw.org/news/2020/12/14/us-sanctions-international-criminal-court

[17] https://www.timesofisrael.com/incoming-senate-majority-leader-threatens-icc-with-sanctions-over-case-against-israelis/

[18] https://www.bbc.com/news/articles/cly2exvx944o

[19] https://www.newsweek.com/netanyahu-arrest-warrant-list-countries-comply-icc-1990062

[20] https://www.reuters.com/world/us-rejects-icc-arrest-warrants-israeli-officials-white-house-spokesperson-says-2024-11-21/

[21] https://www.middleeasteye.net/news/us-lawmakers-hague-invasion-act-what-is-it

[22] https://www.palestinechronicle.com/hague-invasion-act-us-senator-threatens-icc-with-military-force/

[23] https://www.msn.com/en-us/news/politics/graham-knocks-icc-over-netanyahu-gallant-a-dangerous-joke/ar-AA1uvFC5

[24] https://www.asil.org/insights/volume/7/issue/7/us-announces-intent-not-ratify-international-criminal-court-treaty

[25] https://www.newarab.com/news/hague-invasion-act-can-us-invade-netherlands-protect-israel

[26] https://newrepublic.com/post/188733/tom-cotton-plan-icc-benjamin-netanyahu-warrant

[27] Criminal legislation in Germany is particularly problematic in that it amalgamates criticism of policies of the Israeli government with anti-semitism.

[28] https://legal.un.org/avl/ha/ufp/ufp.html

https://news.un.org/en/story/2023/12/1144717

[29] https://www.ungeneva.org/en/about/league-of-nations/covenant

[30] Alfred de Zayas, ”The International Judicial Protection of Peoples and Minorities”, in C. Bröllmann Peoples and Minorities in International Law, Brill 1994, pp. 253-287 https://brill.com/edcollbook/title/9319. Nemesis at Potsdam, Routledge, London 1977.

[31] Carl Jakob Burckhard, Meine Danziger Mission, Munich 1960, third enlarged edition 1980.

[32] H. v. Truhart, Völkerbund und Minderheitenpetitionen, Wien, 1961. Alfred de Zayas, Nemesis at Potsdam, Routledge 1977, chapters 1-3. De Zayas, 50 Theses on the Expulsion of the Germans, Inspiration, London and Berlin 2012. https://www.cambridge.org/core/journals/american-journal-of-international-law/article/abs/protection-of-minorities-by-the-league-of-nations/D0767817D3FA0A0478EE0FE408AB31AC https://academic.oup.com/edited-volume/42626/chapter-abstract/358047973?redirectedFrom=fulltext&login=false

Victor Burns, „Die Tschechoslowakei auf der Pariser Friedenskonferenz“, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. VIII (1938) pp. 607.23.

https://link.springer.com/chapter/10.1007/978-3-642-80273-7_4

[33] https://archives.ungeneva.org/lontad

[34] Permanent Court of International Justice, Decisions and Judgments, Series A, B, The Hague, 1919-1939.
https://icj-cij.org/pcij-series-a
https://www.icj-cij.org/pcij

https://www.worldcourts.com/pcij/eng/decisions/1928.04.26_upper_silesia.htm

https://www.worldcourts.com/pcij/eng/decisions/1933.07.29_agrarian_reform.htm

[35] https://www.nytimes.com/1934/09/15/archives/poland-hails-end-of-treaty-on-minorities-sees-herself-now-becoming.html

https://www.jstor.org/stable/25777027

https://academic.oup.com/book/6317/chapter-abstract/150016989?redirectedFrom=fulltext&login=false

[36] Hermann Raschhofer, Selbstbestimmungsrecht und Völkerbund, Köln, 1969; Die Sudetenfrage, Ihre völkerrechtliche Entwicklung vom Ernsten Weltkrieg zur Gegenwart, München 1953. A. de Zayas, Nemesis at Potsdam, Routledge, 1977. De Zayas, Heimatrecht ist Menschenrecht, Universitas, Munich 2001.

[37] file:///D:/alfre/Documents/S_RES_242(1967)-EN.pdf

[38] https://news.un.org/en/story/2023/10/1142507

https://www.aljazeera.com/news/2021/5/19/a-history-of-the-us-blocking-un-resolutions-against-israel

https://www.middleeasteye.net/news/43-times-us-has-used-veto-power-against-un-resolutions-israel

https://globalaffairs.org/bluemarble/how-us-has-used-its-power-un-support-israel-decades

[39] https://www.icj-cij.org/case/192

On 28 October 2024 South Africa presented a 750-page memorial supported by more than 400 pages of documentation on Israel’s war crimes, crimes against humanity and genocide against the people of Palestine. https://www.gov.za/news/media-statements/south-africa-delivers-evidence-israel-genocide-icj-28-oct-2024

[40] https://www.counterpunch.org/2024/05/27/call-for-the-icc-to-investigate-ursula-von-der-leyen-for-complicity-in-war-crimes-and-genocide/

[41] https://www.counterpunch.org/author/alfred-de-zayas/

https://www.ohchr.org/en/special-procedures/ie-international-order/mr-alfred-maurice-de-zayas-former-independent-expert-2012-2018

[42] https://www.icj-cij.org/case/131

[43] https://www.icj-cij.org/case/186

[44] https://news.un.org/en/story/2024/09/1154496

[45] https://www.nytimes.com/1974/11/13/archives/south-africa-is-suspended-by-un-assembly-9122-un-session-barssouth.html

[46] https://press.un.org/en/2024/ga12650.doc.htm

[47] https://news.un.org/en/story/2016/10/543832-us-abstains-first-time-annual-un-vote-ending-embargo-against-cuba

https://documents.un.org/doc/undoc/gen/n15/336/95/pdf/n1533695.pdf

[48] https://cepr.net/images/stories/reports/venezuela-sanctions-2019-04.pdf

[49] https://www.un.org/en/about-us/un-charter/full-text

[50] https://www.counterpunch.org/2024/03/27/un-charter-un-credibility-and-unlawful-unilateral-coercive-measures/

[51] https://onlinelibrary.wiley.com/doi/abs/10.1111/ajes.12542

[52] https://www.counterpunch.org/2022/03/21/fake-news-fake-history-fake-law/

[53] See Alfred de Zayas, Völkermord als Staatsgeheimnis, Olzog Verlag, München 2011.

[54] https://www.ohchr.org/en/statements/2016/10/statement-alfred-maurice-de-zayas-independent-expert-promotion-democratic-and

https://studylib.net/doc/17691385/human-rights-and-whistleblowers-%E2%80%93-alfred-de-zayas

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