A Shaky Start for the ICC
Since its establishment in 2002 the International Criminal Court has struggled tofind a path to legitimacy. Its establishment was a triumph for the Global South and civic activism in extending the potential reach of international criminal law to the countries of the Global North. ICC prospects were limited from the outset by its organizational identity being situated outside the formal UN framework and even more so, by the failure of the geopolitical ‘big three’ of the US, China, and Russia to join, and in relation to present concerns, by Israel’s refusal. The ICC has 124 members including the liberal democracies in Western Europe, all states in South America, most in Africa, and many in Asia. Despite this wide representation it has struggled throughout its existence for credibility, influence, respect, and legitimacy.
In its early years the ICC was deservedly blamed for concentrating its activities on the alleged wrongdoing of sub-Saharan African leaders, suggesting a racialist bias. Then later on, in relation to US and Israel’s alleged crimes in Afghanistan and Occupied Palestine, the ICC prosecutor sat on the files containing abundant evidence justifying at the very least, diligent investigations to determine whether indictments and prosecution were legally warranted, and by doing nothing, an impression was formed that the ICC was so weak and insecure that it could not hope to resist geopolitical, Western backdoor manipulations. ICC inaction in this instance was partly attributed to the radical ultra-nationalism of the Trump presidency that had the temerity to impose personalized sanctions on the prosecutor of the ICC should the tribunal open a case against either the US or Israel. Such sanctions were abandoned when Biden became president but the underlying hostility to ICC accountability.
The story goes on, but with new twists. When Russia attacked Ukraine in early 2022, the ICJ was called upon by the NATO West to act decisively with unaccustomed haste. The ICC obliged by expediting its procedures to move forward on an emergency basis to make a determination as to whether Putin and others should be immediately indicted for war crimes and arrest warrants issued. This unusual request for haste appeared to serve the geopolitical interests of the West, again somewhat racialized by the fact that ICC activism was on behalf of Ukraine a majority white, Christian victim of alleged war crimes. Such haste and pressures from the West had never before in the brief existence of the ICC been so enlisted. The ICC obliged, further compromising its credibility, by issuing arrest warrants for Putin and a close assistant, confirming the suspicion that it could be bullied even by non-parties to the Rome Statute that states adhered to if seeking status as parties, active in the work of the ICC.
Such haste with respect to Russia was not at all evident in relation to Gaza, despite the far greater urgency, considering the magnitude and severity of the unfolding humanitarian catastrophe facing the Palestinian people. To date it has withheld a meaningful response to the legal effort of Chile and Mexico to have the ICC investigate allegations against Israel. These two governments were seeking an ICC investigation and appropriate responses to the violations of the Genocide Convention by Israel in the course of carrying out its retaliatory attack on Gaza after October 7 that seemed designed to ignore the civilian innocence of the Palestinian people in Gaza in a prolonged process of imposing collective punishment on an occupied people, itself a violation of Article 33 of the 4th Geneva Convention. This difference in ICC responses to these two initiatives reinforced an impression of double standards in the tribunal’s treatment of allegations of international crimes. In this instance the behavior of the ICC contrasted unfavorably with the laudable efforts of ICJ to do what it could do by way of declaring the relevant international law. The effectiveness of the ICJ Interim Orders was hampered by its inability to induce compliance by Israel or enforcement by the UN. These unfortunate frustrations were also attributable in part to the complicity of the liberal democracies in aiding and justifying Israel’s response to the Hamas attack.
Is the ICC Escaping from its Bad Reputation Thanks to Israel?
Against this background, it was inevitable that the ICC would be widely viewed as a weak institution, above all by not initially obtaining participation or cooperation of such important states as the US, Russia, China, and of course, Israel. In this regard, the ICC was most unfavorably compared to the International Court of Justice (ICJ) to which all members of the UN were automatically parties. The ICJ was widely respect for maintaining a high degree of professionalism and juridical dignity in the course of assessing the merits of legal disputes referred to the tribunal for adjudication even when geopolitical strategic interests were present. This positive reputation of the ICJ was greatly enhanced by its near unanimous Interim Orders of January and March 2024 granting several Provisional Measures requested by South Africa to impede Israel’s behavior that seemed to lay a plausible basis for concluding that Israel was guilty of ‘genocide’ in Gaza, although no such conclusion was reached, and the substantive legal status of the genocide allegation deferred until the ICJ rendered its decision on the merits.
Israel was also legally ordered by the ICJ to allow humanitarian aid to reach Palestinian civilians without interference, at least until the final judgment on the merits of the genocide contention could be rendered. This was expected to happen in years hence after the ICJ had an opportunity to respond to further elaborate oral and written pleadings by the parties and those actors given leave to intervene. This process was expected to last for several years, quite likely reducing the existential relevance of the ICJ judgment as the killing would have hopefully have stopped long before the Court had time to rule. The decision would still have jurisprudential value as an authoritative interpretation of the crime of genocide, and might give rise to the establishment of preventive and early response mechanisms in anticipation of future genocides. It is possible that the passage of time would reduce the intensity of partisan geopolitics, creating a better atmosphere for cooperative moves to strengthen the global normative order against futue outbreaks of genocidal violence.
Despite the cautious legal professionalism of the ICJ a nearly unanimous panel of the seventeen judges found Israel sufficiently responsible for ‘plausible genocide’ to grant Provisional Measures in response to South Africa’s request. [Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel, ICJ Orders, 192, 20240126 & 192 20240328, ProvMesures)]; [see also systematic assessment of Special Rapporteur on Occupied Palestine for the UN Human Rights Council, Francesca Albanese, ‘Anatomy of a Genocide,’ A/HRC/55/73, 25 March 2024].
These orders legally require Israel to take a variety of steps to stop engaging in genocidal behavior including interference with efforts to deliver food and medicine to starving and desperate Palestinians huddled together in dangerously crowded collective misery in the small city of Rafah on the Egyptian border. The prospect of bloody extensions of genocide are daily proposed by Israeli leaders in their murderous attacks on Rafah, much overcrowded condition resulting from sheltering large numbers of Palestinian civilians. Israel also issued a series of evacuation orders purporting to shift Palestinians to ‘safe zones,’ but in practice subjecting even these areas in Central Gaza to devastating attacks. This pattern of evacuation orders and continuous attack has put the finishing touches on Israel’s actions that are more and more widely perceived as repudiations of the minimal moral sensibilities of a common humanity as well as carrying out mortal threats to the life prospects of Palestinians now estimated at over 186,000 by the highly respected medical journal, Lancet. This higher figure than the death statistcs compiled and verified by Gaza Public Health sources the direct Israeli violence, results from counting as deaths attributable to the attacks, Palestinians missing as presumably buried beneath piles of rubble, as well as the deaths caused by starvation, malnutrition, inadequate sanitation. Using the Lancet estimate of the proportionate loss of life in Gaza (without taking account of injuries, physical and mental) if occurred in US society would amount to 2,900,000 fataities, which is a figure greater than the total loss of American loss of lives in all the wars of the entire 20th century.
A Redemptive Moment for the ICC?
If asked even a week ago, I would have said that Bibi Netanyahu would have been the very last person on the planet to come to the institutional rescue of the ICC, although he did so in a backhanded way. Netanyahu leaped to respond after leaked rumors suggested that the ICC was on the verge of issuing arrest warrants naming Netanyahu, the Defense Minister, Yoav Gallant, and Army Chief of Staff Herzl Halevi. Somehow this prospect so agitated Netanyahu that he chose to go on the offensive in advance of any formal action. His five-minute video tirade against the ICC is worth watching by everyone—
https://x.com/netanyahu/status/1785362914519519597?s 1-–if only to get a sense of just how potentially formidable the ICC might become if it performs in conformity with its statute. On balance, if it takes Netanyahu’s misplaced sense of outrage to shame the ICC into finally doing its job, so be it.
At the same time Netanyahu’s gross distortions of what was happening in Gaza were extreme enough to provide valuable material to late night TV humorists. The obvious purpose of Netanyahu’s tirade was to whitewash over six months of an unprecedented humanitarian catastrophe imperiling the individual and collective survival of the long abused civilian population of Gaza. Israeli behavior is so macabre as to be beyond the realm of good-natured, apolitical comedy, providing more of an occasion for weeping and mourning the lost and ravaged lives, and devasted cities, hospitals, places of worship, schools, and UN facilities.
It is within this setting that the ICC seems to have been given an opportunity to act finally in accordance with its mandate, to redeem its reputation for spinelessness, and strike a symbolic blow in the increasingly worldwide struggle to stop Israel’s genocide in Gaza. It is technically possible and undoubtedly politically tempting for the prosecutor to disappoint these expectations by limiting ICC action against Israeli and Hamas leaders to their alleged pre-October 7 crimes. Such an evasion would be within scope of the 2015 initiative of Palestine, a party to the Rome Statute, which was initiated in such a manner that any crime after 2014 was potentially indictable. Such an evasion would be a double disappointment for those seeking to increase pressure on Israel to accept a ceasefire followed by a series of restorative acts that could include redress, reparations, accountability, and reconstruction punitive directives.
We are left with the puzzle of why Israel’s reaction to the ICC, in view of its low institutional esteem, was seen as so much more threatening to Israel than the more authoitative directives of the far more established ICJ. Could it be that the criminal character of the ICC and the personal nature of arrest warrants are more of an emotional pushback than mere legal rulings? Or was the ICC perceived as low hanging fruit, which even Israel took respectful account of the ICJ legal proceeding, and participated both in appointing a prominent Israeli jurist as an ad hoc judge and by taking part in the proceedings by offering a defense of their actions in Gaza.
Netanyahu phrased his key argument against the arrest warrants as posing a mortal threat to the right of democracies to defend themselves against their evil enemies, singling out Iran. Such a view, reverses the perceptions of peoples throughout the world excepting those governments and right-wing elements that support Israel in the Global West and the hardest core Zionist ideologues. Increasingly, even in the strongholds of Zionist influence, softer versions of Zionism and more independent Jewish voices are siding with the pro-Palestine protesters, reacting against the stark reality of genocide.
A Concluding Remark
We should all know by now that Israel has no intention of complying with international law no matter what the source of authority. In this sense, the importance of the ICJ and potentially, the ICC, is to strengthen the growing tide of pro-Palestinian sentiment around the world, and an emerging consensus to escalate civic solidarity initiatives of the sort that contributed to the American defeat in Vietnam despite total battlefield military superiority and that doomed the South African apartheid regime. In this regard, the utterances of the most influential international institutions entrusted with interpreting international law have more impact in high profile political situations such as exist in Gaza, than does do either the ICJ or ICC, and for that matter, than even the UNSC. Once again if the Palestine people do finally realize their basic rights, it will be thanks to the resistance of those victimized as reinforced by the transnational activism of people everywhere. It may be in launching his vitriolic attack on the ICC, Netanyahu was subconsciously delivering his\ mendacious sermon to the aroused peoples of the world.
We now know that the Prosecutor of the ICC did recommend to a sub-commission in the form of a panel of judges the issuance of arrest warrants for Israeli and Hamas leaders, and so far no decision has been forthcoming. Notable, also, was the omission of genocide from the crimes charged to the Israeli leadership. The US reacted with anger, as exhibited by President Biden, that the ICC Prosecutor seemed to create a moral equivalence between Israel and the terrorist organization, Hamas. Critics of Israel and complicit states in contrast objected to the equivalency but from an opposite position—making an attack justified by Hamas’ right of resistance within the limits of international humanitarian law equivalent to Israel’s 9+ months of genocide.
Perhaps needless to observe, the ICC has yet to deliver its judgment.
Global Justice in the 21st Century 
Rogue States Sanction the International Criminal Court
26 Jun[Prefatory Note: This post is a slightly modified version of an editorial contribution to TMS (Transcend Media Service), June 22-28, 2020).]
Sanctioning the International Criminal Court
Even Orwell would be at a loss to make sense of some of the recent anticsof leading governments. We would expect Orwell to be out-satirized by the American actions to impose penalties and sanctions on officials of the International Criminal Court, not because they are accused of acting improperly or seem guilty of some kind of corruption or malfeasance, but because they were doing their appointed jobs carefully, yet fearlessly and in accord with their proper role. Their supposed wrongdoing was to accept the request for an investigation into allegations of war crimes committed in Afghanistan by military personnel and intelligence experts of the U.S. armed forces, the Taliban, and the Afghan military. It seemed beyond reasonable doubt that frequent war crimes and crimes against humanity have occurred in Afghanistan ever since the U.S.-led regime-changing attack in 2002, followed by many years of occupation and continuous combat amid a hostile population.
It should be noted that Israel is equally infuriated that the ICC has affirmed the authority of its Prosecutor, Fatou Bensouda, to investigate allegations by Palestine of war crimes and crimes against humanity committed in the Occupied Palestinian Territories (OPT) of the West Bank, East Jerusalem, and Gaza. These allegations include the unlawful transfer of Israeli civilians to establish settlements in the OPT as well as administrative structures and practices that constitute violations of the criminal prohibition on apartheid. Netanyahu, like his Washington sibling, has called for the ICC to be subject to sanctions for staging this ‘full frontal attack’ on Israeli democracy and on ‘the Jewish people’s right to live in Israel,’ a ridiculous contention on its face. The Israeli Prime Minister seems to be contending that Israel as a sovereign state has the right to defend itself as it wishes, and should not be impeded by any obligation to respect international criminal law, or for that matter, any external source of authority, including the United Nations. Such a defiant claim, and the abusive practices and policies that have followed over many years, amounts to a crass affirmation of what I have elsewhere called ‘gangster geopolitics.’
Of course, Israel or the United States would be given broad latitude to make arguments in support of their innocence or their jurisdictional claims that the ICC lacked authority to prosecute, but these U.S. and Israel objections are not complaining about encroachments by the ICC on their right to mount legal defenses, but rather on the far more radical idea involving a total denial of international legal accountability. These two rogue states refuse to accept even the authority of the ICC to determine whether or not it has jurisdiction to consider the criminal charges. This kind of repudiation of an international institution that has been acting responsibly, well within their legal framework set forth in the Rome Statute, an international treaty, represents an unprecedented and extreme expression of anti-internationalism.
The angry American pushback did not bother contesting the substantive allegations, but denied only the jurisdictional authority of the ICC, and attacked the audacity of this international entity for supposing that it could investigate, much less prosecute and punish the representatives of such a mighty state that, by implication, should never, no matter what, be held internationally accountable. When the ICC was investigating, and indicting, only African leaders few Western eyebrows were raised, but recently when the Court dared ever so gingerly to treat equals equally in accord with its own legal framework—the Rome Statute of 2000—it had in Washington’s and Tel Aviv’s eyes so overstepped its unspoken limits as to itself become a wrongdoer, and by this outlandish logic, making the institution and its officials legitimate targets for sanctions. What this kind of unprecedented punitive pushback against ICC officials amounts to is a notable rejection of the global rule of law when it comes to international crime and a crude geopolitical reminder to international institutions that ‘impunity’ and ‘double standards’ remain an operational principal norm of world order.
Speaking for the U.S. Government the response of the American Secretary of State, Mike Pompeo, stunningly exhibited the hubris that became the American global brand well before Donald Trump disgraced the country and harmed the peoples of the world during his tenure as president. Pompeo’s reaction to the unanimous approval of the Prosecutor’s request to investigate war crimes in Afghanistan was little other than seizing the occasion to insult the ICC by describing it as “little more than a political tool employed by unaccountable international elites.” Such a statement crosses the borders of absurdity given the abundant documentation of numerous U.S. crimes in Afghanistan (the subject-matter of Chelsea Manning’s WikiLeaks 2010 disclosures that landed her in jail) and in view of the several ‘black sites’ in European countries where foreign suspects are routinely tortured, and subject to rape. Contra Pompeo, it is not the ‘international elites’ that are unaccountable but the national elites running the U.S. and Israeli governments.
The Pompeo dismissal of the ICC initiative was a prelude to the issuance by Trump on June 11th of an Executive Order that extended the prior denial of a U.S. visa to Bensouda, and threatened a variety of sanctioning moves directed at anyone connected with the ICC and its undertakings, including freezing assets and withholding visas, not only of ICC employees, but also of their families, on the laughable pretext that the prospective ICC investigation was creating for the United States a ‘national emergency’ in the form of an “unusual and extraordinary threat to the national security and foreign policy of the United States.” Long before the present crisis, Trump had told the UN in a 2018 speech at the General Assembly that “..the ICC has no jurisdiction, no legitimacy, and no authority..We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.”
As crude as are the words and deeds of the Trump crowd, there were almost equally defiant precursors, especially during the presidency of George W. Bush, an anti-ICC campaign led by none other than John Bolton who was to become Trump’s notorious National Security Advisor, and has suddenly become his antagonist-in-chief as a result of his book depicting Trump’s array of impeachable offenses. Remember that it was Bush who ‘un-signed’ the Rome Statute that Bill Clinton had signed on behalf of the U.S. on the last day of his presidency, but even he did so with the proviso that the treaty should not be submitted to the Senate for ratification and hence not be applicable, until the ICC had proved itself a responsible actor in Washington’s judgmental and biased eyes. Congress and the State Department stepped in to make sure that American military personnel would not be charged with international crimes both by threatening preventive action and entering into over 100 agreements with other countries to ensure immunity of American soldiers and officials from ICC jurisdiction, coupled with a threat to withhold aid if a government refused to agree to such a law-defying arrangement. Hillary Clinton also put her oar in the bloody water some years ago, insisting that since the U.S. was more of a global presence than other countries, it was important to be sure that its military personnel would never be brought before the ICC, no matter what their alleged offenses. The global military reach of the U.S. by way of hundreds of overseas bases, special forces covert operations, and naval patrols around the globe should enjoy immunity on a individual level, as impunity on a collective level of state responsibility. The impulse is understandable given the degree to which U.S. global security activities are so often conducted in ways that violate the most basic prohibitions of international criminal law.
In other words, non-accountability and double standards have deeper political roots in the bipartisan soil of American security politics than the extreme anti-internationalism of Trump. These tactics of self-exemption from legal accountability can be usefully traced back at least as far as the ‘victors’ justice’ approach to war crimes during the second world war where only the crimes of the defeated countries were subjected to accountability at Nuremberg and Tokyo, a step hailed in the West as a great advance despite its flaws. It was deeply flawed considering that arguably the most horrifying and least forgivable act during the four years of hostilities were the atomic bombs dropped on Japanese cities. Is there any serious doubt that if Germany or Japan had struck cities of the Allies with the bomb, and yet lost the war, those responsible for the decisions would have been held accountable, and harshly punished?
In some ways as bad from a law angle was the U.S. orchestrated trial of Saddam Hussein and his closest advisors for their state crimes, although the 2003 Iraq War arose from acts of aggression by the United States and UK, and subsequent crimes during the prolonged occupation of Iraq. In other words, the idea of unconditional impunity for the crimes of the United States is complemented by self-righteous accountability for those leaders of countries defeated in war by the United States. Such ‘exceptionalism’ affront the conscience of anyone who shares the view that ideas of fairness and equality should be affirmed as core values in the application of international criminal law.
As might be expected, mainstream NGOs and liberal Democrats are not happy with such an insulting and gratuitous slap in the face of international institutions that have previously proved mainly useful in going after the wrongdoing of non-Western leaders, especially in Africa. It should be remembered that African countries and their leaders were the almost exclusive targets of ICC initiatives during its first ten years, and it was from Africa that one formerly heard complaints and threats of withdrawal from the treaty, but I doubt that ideas of sanctioning the ICC ever entered the imaginary of the understandable African displeasure at an implicit ethos of ‘white crimes don’t matter’!
David Sheffer, the American diplomat who headed the U.S. delegation that negotiated the Rome Statute on behalf of the Clinton presidency, but who was careful to preserve American geopolitical interests in the process, expressed the liberal opposition to Trump’s arrogant style of pushback with these words: “The [Trump] Executive Order will go down in history as a shameful act of fear and retreat from the rule of law.” There is an element of hypocrisy present in such a denunciation due to withholding the pre-Trump record of one-sided imposition of international criminal law. True enough, it was the prior Republican president that had locked horns with the ICC some years ago, but the ambivalence of Congress and the Clintons is part of a consistent American insistence of what I would label as ‘negative exceptionalism,’ that is, the right to act internationally without accountability while taking a hard line on holding others accountable; impunity for the powerful, accountability for the weak. It used to be that American exceptionalism was associated with a commitment to decency, human rights, the rule of law, and a visionary approach to world order that was missing elsewhere, and could serve as a catalyst for peace and justice in the world. Such self-glorification, which was never deserved or appropriate, has long since been forfeited at the altar of global geopolitics, whose players make up the rules as they go along, while showing contempt for the legal constraints that are deemed suitable for the regulation of their adversaries.
Finally, it should be appreciated that while geopolitical actors can get away with murder, their rogue behavior is a precedent for all states, and weakens and undermines what fragile procedures exist to uphold the most basic norms of international law.
Tags: atomic attacks, Bill & Hillary Clinton, George W. Bush, ICC, Nuremberg, Sanctioning the ICC, U.S. exceptionalism