The Dangerous Fantasy of “International Law”
The Dangerous Fantasy of “International Law”
And why it is a particular problem for Jews.
In the summer of 1998, shortly after the Rome Statute establishing the International Criminal Court (ICC) had been signed and four years before it went into effect, David Frum wrote: “power politics being what they are, the International Criminal Court may hesitate to strike directly at the United States. But Israel will provide a convenient proxy”. Points for prescience. Earlier today, ICC Prosecutor Karim Khan announced that his office was applying for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for a raft of war crimes and crimes against humanity alleged to have been committed in Gaza.
Several oddities are immediately apparent, even within the ICC framework. First, Israel is not a signatory to the Rome Statute. Khan gets around this by claiming the ICC “can exercise its criminal jurisdiction in the … State of Palestine”, which, of course, does not exist. Second, though Israel is not a party to the ICC, it was cooperating with the Prosecutor in an investigative process that was abruptly and arbitrarily terminated, strongly suggesting the “investigation” was a sham and the decision to apply for indictments had been taken before the evidence was gathered. Third, no indictments were issued for officials in Iran, the State behind the 7 October pogrom in Israel that slaughtered, raped, and kidnapped nearly 1,500 mostly Jewish civilians.
Still, it was a nice touch that Khan also announced the application for warrants against senior HAMAS officials, namely the head of the group in the Gaza Strip, Yahya Sinwar; the commander-in-chief of the Qassam Brigades, Mohammed Deif; and the “political” leader, Ismail Haniyeh. HAMAS’ complaint that the ICC was attempting “to equate the victim with the executioner” was quite correct, albeit not in the way they intended. The ICC has given itself political cover institutionally to deflect the inevitable charge that it is unduly focused on Israel, while fostering a sense of equivalence between Israel and HAMAS, and as a bonus the ICC can further this political narrative without putting the HAMAS terrorists in any danger of arrest; all the trouble will be for Israel.
And politics is what this is all about. There is little point delving into the ICC charges against Israel as legal or factual matters because they were arrived at using neither law nor fact. The shameless misuse of “international humanitarian law” (IHL) and concepts like “proportionality” on their own terms, essentially to try to criminalise war per se, is a subset of the larger problem: the system that brings these charges about.
The political nature of “international law” is easier to see with the United Nations’ own so-called “World Court”, the International Court of Justice (ICJ), where Israel is currently fending off disgraceful proceedings accusing her of “genocide”. The U.N. has been openly hostile to Israel for decades, and the “charges” are being brought by South Africa, run by the African National Congress (ANC), a remnant of the Soviet Revolution that has waged war against the Jewish State for half-a-century. The ANC’s flagrantly political use of “international law”—the ANC invited Sudan’s Umar al-Bashir onto its territory while he was under an ICC indictment for genocide and the ANC recently announced it would refuse to implement an ICC arrest warrant for Russia’s Vladimir Putin if he landed in South Africa—has made it difficult for anyone of good-faith to take the ICJ case seriously as a “legal” matter.
Pinning the ICC down is slightly more tricky. Though the ICC was devised through negotiations within the U.N. process and can have cases passed to it by the U.N. Security Council, it was deliberately designed to avoid Security Council oversight and the veto of the Permanent Five. Likewise, there is an official relationship between the U.N. General Assembly and the ICC, but they are distinct entities, and the ICC draws its funding independently, mostly from its State Parties,1 as well as various other governments, international non-governmental organisations (NGOs), multinational corporations, and some individuals.
If the funding streams play a role in prodding the ICC this way and that—there has recently been an emphasis on sexual violence, for example, unless it is committed against Jews—the most important factor determining ICC priorities is its personnel and the structure they operate under.
In Khan’s statement, he said the application for the arrest warrants—as if their issuance is not a foregone conclusion—would be decided upon by some “learned judges”, which sounds lovely, until one thinks about it for approximately ten seconds. The ICC is constituted as an international institution that claims an authority superseding national governments, yet the eminences at its helm answer only to the thoughts in their own minds and those of their colleagues.2 The ICC Prosecutor and the judges are not accountable to any electorate and their decisions can only be contested within the ICC appeals mechanism.
The Prosecutor, the judges, and the rest of the ICC bureaucracy are drawn from an international layer of highly ideological academics and lawyers committed to the “progressive development of international law”, a project begun in the wake of Nuremberg. This milieu might be called “far-Left” as a shorthand, but it rather undersells the radicalism of their vision of State-to-State relations across the whole world being regulated in the way relations between individuals are governed within States, an international Rule of Law where they are the Sovereign. By definition, this cadre sees national sovereignty as the biggest impediment to their objectives, and they are by disposition virulently hostile to claims based on traditional rather than rational-legal authority, to claims of national interest generally, the use of force in pursuit of same, nationalism or patriotism in any form, and really democracy, seeing it as a destabilising factor that produces undesirable elements in the international system—look at Donald Trump—which compete with their own magisterial impartiality.
This obviously makes the Jews a special problem, holding to their ancient creed of peoplehood centred on the Land of Israel, reformulated in the modern era as “Zionism”, a nineteenth-century romantic nationalism. During the Enlightenment, Jews were attacked for stubbornly holding on to their insular, backward particularism, and the Christian antisemitism that accused Jews of warring against Christ was replaced with a “secular” accusation that the Jews had nurtured Him, giving birth to the “Dark Ages” for the whole of Europe. The language has changed, but the theme of Jews as not only holdouts against the tide of universalist Progress, but as a cosmic danger to the entire enterprise, has remained within Western elites, who now come from the four corners of the Earth and staff the ICC.
As with so many things that start as problems for Jews, “international law” of the modern kind, embodied in the ICC and United Nations institutions like the ICJ, is a problem for us all. The ICC Prosecutor today made a pro forma nod to “complementarity”, the idea that States with functioning legal regimes should handle cases involving their own nationals. The idea that elected national governments were granted permission from the ICC to act as local branches of the Court in matters of armed conflict was always troubling enough in the abstract. Now, the concrete danger is on display: what has been granted can be revoked.
There should be no downplaying of what has happened here. The ICC—a self-selecting cadre of ideologists that have not and could not obtain democratic legitimacy—has claimed the right to remove and imprison the leaders of the democracies if the ICC does not agree with their national security policies.3 Granting the ICC such powers is absurd in theory, and gruesome in practice. Only the law-governed States will be affected by this. Putin and other tyrannical rulers who genuinely offend against international norms are entirely unaffected by the whims of the ICC.4 It is not incidental that “international law” functions to restrain the West and arbitrarily single out Israel: anti-Westernism and antisemitism are the core political commitments commanding a majority in the international system. Western governments are already hyper-cautious about the use of force, even to defend themselves and their allies, as we have seen in Ukraine. If the ICC is allowed to make any headway with this “prosecution” against the Israeli leadership, leaders in the West will further retreat from the duty to uphold State interests and values abroad. Doing nothing will be safer than risking decades in a prison cell in The Hague.
A clear, collective response from the West rejecting the ICC’s actions against Israel can avert the worst of the damage in the short-term. Over the longer term, the solution lies in undermining the premise on which the ICC has acted. This episode might yet serve some good if it galvanises Western officials to formulate policies that roll back the bloated infrastructure of “international law” that allows anti-Western forces to interfere with Western policy and persecute Western citizens. In the meantime, this is a sharp reminder that the guardian of any concept of “human rights” is national sovereignty.
NOTES
The governments of Britain, France, Germany, Italy, and Japan are the main funders of the ICC.
Even where a judge shows blatant bias and/or conflicts of interest, only other judges can remove them from a case. The nominal oversight body, the Assembly of States Parties (ASP), contains representatives from the Member States (who often meet at the U.N. headquarters), appoints the Prosecutor and the judges, and has a role in setting the ever-changing rules of procedure and evidence. The ASP has no control over ICC prosecutorial or judicial officials once they are in office, nor does anyone else.
The only precedent for such a situation is the medieval Papacy, which after the eleventh-twelfth century Papal Revolution acquired the power (which was sometimes even effective) to remove Kings and Emperors who offended against the Roman Pope’s understanding of law and morality. The difference is that the Pope’s claim to derive this power from God was at least largely accepted in Latin Christendom.
In the cases where despotic rulers have been brought before the ICC—Slobodan Milošević (Jugoslavija), Charles Taylor (Liberia), and Laurent Gbagbo (Ivory Coast)—this has happened after they have been removed from office by force, usually at the hands of one or more Western democracy.