Can international law truly bring the powerful to justice?

While the officials of defeated countries stood before international tribunals, such as Ratko Mladic who was found guilty of the Srebrenica genocide, the officials of powerful countries frequently evade prosecution and even get a say in what constitutes international law. Even though international law acknowledges that states are each other's equals, the reality is some states are more equal than others.

A wedding. Celebrating a new birth. Coming together as family and friends. These are occasions most people expect to feel at their safest and happiest. However – and for many across largely Muslim countries in Africa and Asia – these can also be emotionally devastating and life threatening events where a moment of joy can easily turn to anguish and misery in a few short seconds. These countries are subject to the almost arbitrary power to kill enjoyed by powerful developed nations engaged in the “war on terror”.

Such terror described above is like that being experienced by two Yemeni families who have lost 34 family members between them, including 17 children, at the hands of American drone pilots. The Al-Ameri and Al-Taysi families have now sought the legal intervention of the Inter-American Commission on Human Rights to ensure their safety and that of their community.

But what are the chances the militarily powerful, economically advanced, and diplomatically influential states of this world will ever be effectively held to account? Sadly, the chances are slim, even if the fight is a necessarily important one.

A 'world police'?

Whenever shocking crimes are committed against individuals or communities by repressive regimes or belligerent state and non-state actors, it is common to hear the aggrieved complaining about breaches of “international law”.

Look no further than Israel's repeated violations of the laws of armed conflict against the Palestinian population it brutalises daily, or the plight of the Rohingya that has seen hundreds of thousands flee rape and murder in Myanmar, or the continuing mass murder of the Syrian people by the Assad regime. In each case, you will see activists, lawyers, and journalists accuse various actors of violating international law.

But what is international law? Usually, laws most people come into contact with in their day-to-day lives are formulated by political legislators (whether democratically elected or despotically imposed) and are enforced by state authorities.

However, there is no international government, and so international law is largely composed of treaties that signatory states agree to be bound by (and by extension does not necessarily bind non-signatories) and by customary international law, the norms and practices adopted by international actors in their interactions with one another.

Without a government and a “world police”, however, international law is incredibly hard to enforce against powerful countries. Perhaps the most serious attempt at international law enforcement came by way of the United States and its insistence that it would militarily enforce its vision of what global norms and laws should be. In the wake of the 9/11 terror attacks, the US embarked upon two wars, first in Afghanistan in 2001, and then in Iraq in 2003 – neither war has ended.

This sense of moral superiority and the right to inflict violence to “punish” those who did not follow Washington's way was satirically mocked by the creators of South Park who released “Team America: World Police” in 2004. While that was obviously intended as a tongue-in-cheek parody of American foreign policy, it is accurate in depicting how Washington saw itself as a nation 'above' all other nations, even though international law acknowledges that states are each other's equals. The reality is some states are more equal than others, and yet other states are so powerful that no one can tell them what to do.

The powerful legislate, the rest submit

This is where power comes in. If a state is sufficiently powerful and influential enough, it can pull on all sorts of levers to ensure that its officials are almost impervious to punishment, no matter what they have done while in office. While the officials of defeated countries stood before international tribunals, such as Ratko Mladic who was found guilty of the Srebrenica genocide, the officials of powerful countries frequently evade prosecution and even get a say in what constitutes international law.

Despite numerous UN Security Council and General Assembly resolutions condemning illegal settlements on Palestinian territory and disproportionate use of force that has indiscriminately killed innocent civilians Israel chaired the General Assembly's Sixth Committee, a body that is primarily concerned with questions of international law. How can a state that routinely violates international law be in a position to tell other states what should or should not be considered legal? The sheer cognitive dissonance is unparalleled.

Similarly, the United States' litany of war crimes in Iraq have gone completely unanswered, as has the British military's culpability for crimes committed against civilians while they were an occupying power in Basra. For the former, it is difficult to forget the grisly scenes of the “Crazy Horse 18” attack helicopter crew exposed by Wikileaks that was involved in a string of attacks against targets, mercilessly mowing down civilians in a hail of automatic fire. For the latter, the International Criminal Court ruled that British forces had abused hundreds of Iraqi detainees, but it would not take action against them.

One would be hard-pressed to believe that, had Saddam Hussein ever been brought before an international tribunal, and a court found the former Iraqi dictator had ordered the killing of civilians, that it would take no action against him. However, powerful nations ensure that, by their might, they are always in the right.

Returning back to the Al-Ameri and Al-Taysi families who have so tragically and senselessly lost dozens of their relatives in Yemen, it is highly unlikely that American power will be held to account or restrained. Domestically, American courts do not “second-guess” the government on military affairs and foreign policy, and cases brought by Yemenis who have lost families have already been thrown out by federal appeals courts.

While the two families have gone to a supranational body to determine their case, this may be a situation where political realities determine judicial outcomes. The United States already has a disproportionate influence on the Organization of American States, the parent body responsible for the commission, and lobby groups led by several Latin American member states as well as NGOs have criticised this overbearing influence by the world's foremost superpower.

Sadly for these Yemeni families, this means they are unlikely to find justice. However, the legal fight is worth it as it can provide an example for others to follow. With enough pressure to hold the powerful to account through a succession of moral victories, we may yet see a more humane world where no innocent life is deemed to have no inherent value regardless of what their nationality is or where they are geographically located.

* The article was published on TRT World