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.

Erasing the UN
3 MarDonald Trump has articulated clearly, if somewhat vaguely and incoherently, his anti-globalist, anti-UN approach on foreign policy. For instance, in late February he told a right-wing audience at the Conservative Political Action Conference that “there is no such thing as a global anthem, a global currency, or a global flag. This is the United States that I am representing. I am not representing the globe.” A similar sentiment was expressed to Congress a few days later in a tone of voice and choice of words praised by media wonks as ‘presidential.’ On this occasion Trump said, “[m]y job is not to represent the world. My job is to represent the United States of America.” Such rhetoric coming from a normal American leader would probably be interpreted as an expression of geopolitical humility, implicitly rejecting the standard insistence on American exceptionalism, exemplified in recent times by the project to create and maintain the first global state in human history.
This potentially self-limiting language might even be understood as renouncing earlier claims to assert American global leadership as the keystone of world order. George W. Bush in 2002 gave this bold leadership claim a sharp edge when he insisted the that only the US model of market-based constitutionalism was a legitimate form of governance for sovereign states in the 21st century. Or even more grandiosely, in the spirit of Michael Mandelbaum and Thomas Friedman, that the United States as a consequence of its martial strength, technological prowess, democratic values and institutions, and skills of leadership provides the world with the benevolent reality of virtual ‘world government.’ Let’s face it, Donald Trump is not a normal political leader, nor is he someone disposed to embrace humility in any form, so we should take his pledge to represent American interests while leaving the world to fend for itself with many grains of salt, especially if we consider the specifics of the Trump worldview. What Trump seems to be offering is maximum disengagement from international and global arrangements designed to institutionalize cooperation among sovereign states, and that is where the UN figures in Trump’s unfolding game plan.
Even before being sworn in as president Trump engaged in UN-bashing on behalf of, and in concert with the Israeli Prime Minister, Netanyahu. His dismissive comment contained in a tweet is rather revealing: “The UN has great potential, but right now it is just a club for people to get together, talk, and have a good time. So sad!” Of course, we are not told what Trump thinks might bring into being this ‘great potential’ of the UN. Also not surprisingly, the tweet was provoked by Security Resolution 2334, adopted December 23rd by a 14-0 vote, which sharply criticized Israeli settlement expansion as unlawful and as creating a major obstacles to establishing peace with the Palestinians. The Obama presidency was sharply criticized by Trump and others, including many Democrats, for allowing passage of this resolution at the UN by failing to do what it had consistently done for the prior eight years, shield Israel from often fully deserved, and long overdue, UN censure by casting a veto. It seems that Trump, a bipartisan consensus in Congress, and the new US Representative at the UN, Nikki Haley evaluate the usefulness of the UN through an ‘Israel first’ optic, that is, the significance of UN is actually reduced to its attitude toward Israel, which is viewed through Israeli eyes, and is unmindful toward the wide spectrum of UN activities and contributions to human wellbeing.
It must be acknowledged that the Obama presidency did only slightly better when it comes to both the UN and Israel. True, Barack Obama in his annual addresses to the General Assembly affirmed the importance and contributions of the UN by concrete reference to achievements, and used these occasions to set forth his vision of a better world that included a major role for the UN. Also, Obama recognized the importance of the UN in dealing with the challenge of climate change, and joined with China to ensure a multilateralist triumph under UN auspices by having the 194 assembled government successfully conclude the 2015 Paris Agreement on Climate Change. However, when it came to war/peace issues such as drone warfare, threats of war directed at Iran, modernization of nuclear weapons, and the defense of Israel, the Obama Administration flexed its geopolitical muscles with disdain for the constraining limits imposed by international law and international morality. In this core respect, Trump’s approach, while blunter and oblivious to the etiquette of global diplomacy, appears to maintain fundamental continuity with the Obama approach.
With respect to defending Israel even when it faces responsible criticism, I can report from my own experience while serving as UN Special Rapporteur on Occupied Palestine, that the defense of Israel’s unlawful behavior within the UN during the Obama years was unconditional, and deeply irresponsible toward respect for international legal obligations, especially in relation to upholding international humanitarian law and norms governing recourse to non-defensive force. American chief representatives at the UN, Susan Rice and Samantha Power, both called for my dismissal from my unpaid post in vitriolic language without ever confronting the substance of my criticisms of Israel’s murderous periodic attacks on Gaza, its excessive use of force in sustaining the occupation, its expansion of unlawful settlements, and its discriminatory administration of the West Bank and East Jerusalem. I mention this personal experience to underscore the willingness of the Obama presidency to go all in with Israel despite the awkward fact that Obama was being harshly attacked in Israel, including by government leasers, and hence also in the US. Obama was being wrongly accused of being unfriendly to Israel as compared to earlier American presidents. Israel has high expectations that Trump will sway with the wind from Tel Aviv.
More to the point, Trump’s view of foreign policy at this stage appears to be a primitive mixture of state-centrism, militarism, nationalism, overall what had qualified until World War I as realpolitik. There was back then no UN, few international institutions, no international law prohibition on aggressive war, no Nuremberg Principles imposing criminal accountability on political and military leaders, no tradition of protection for international human rights, and no affirmation of the inalienable right of all peoples to self-determination. It was a Eurocentric state system that combined the interaction of sovereign states in the West with colonial rule extended directly and indirectly to most of Asia, Africa, and Latin America. Of course, now the colonial system has formally collapsed, China, Russia, and India have risen, Europe has declined, nuclear weapons continue to shadow human existence, and the specter of global warming dangles a sword of Damocles over the human condition. Trump seeks to restore a simpler world with his raucous rally cries of ‘America First.’ This is to be accomplished by carrying out a series of promises: to renegotiate trade arrangements, build walls, crush terrorism, terrorize undocumented immigrants, liberate police from accountability, bar Muslim immigration, and develop the world’s most feared nuclear arsenal. It is not a pretty picture, but also it involves a reckless disregard of the fragility of our interconnected and networked world order that mandates a globalizing framework for common problem-solving rather that a retreat to a glorious past that never was.
Of course, it would be misleading to leave the impression that the Trump worldview is bereft of any constructive thoughts about how to engage with the world. Trump’s controversial connections with Putin and Russia impart a contradictory impression: what is favorable is an evident interest in exploring prospects for a cooperative relationship, which goes against the grain of the American national security establishment, including several Republican heavyweights, which seemed likely in an expected Clinton presidency to be readying the country for a dangerous plunge into a second cold war. It would be ignited with reckless bravado by confronting Russia along its borders; in contrast, what is dubious about the Trump overtures to the Kremlin are the backdoor dealings with Russian officials during the presidential campaign and subsequently, reinforced by the ‘golden shower’ innuendo and unresolved concerns that Trump’s withheld tax returns might reveal awkward information about indebtedness or business dealings or both.
Whether Trump is going to abandon this effort to smooth things with Moscow under this pressure from the US intelligence and security bureaucracy will be a defining feature of whether his foreign policy gets early stuck in the Washington swamp, or risks the governmentally unsettling effects of discontinuity with the past. There are some cynical interpretations of Trump’s opening to Russia as primarily intended to set the stage for intensified confrontations with China. If this view is even partially correct it could easily generate a cold war of its own, although with new alignments. It might quickly lead to hot battlefield incidents that could further escalate, giving rise to renewed fears of nuclear war.
Trump occasionally expresses an appreciation of international cooperation for mutual benefit with other states, as well as recognizing the benefits of keeping traditional alliances (NATO, Japan, South Korea) alive and threatening those countries that menace the global or regional status quo (North Korea). What is totally absent is any acknowledgement of global challenges that cannot be met by states acting on their own or cooperatively through bilateral arrangements. It is here where the erasure of the UN from political consciousness is so troublesome substantively as well as symbolically. To some degree this erasure preceded Trump and is widespread. It has not been challenged as yet by even the Sanders’ end of the political spectrum in the US. I found it telling that Obama made no reference to the UN in his Chicago farewell speech, which can be most accurately understood as a more positive and polite version of Trump’s ‘America First’ engagement with the world.
Even better, on an abstract level, Trump expressed some sentiments that if concretized could overcome some of the forebodings being voiced here. In his speech to Congress on February 28th Trump said “[w]e want harmony and stability, not war and conflict. We want peace wherever peace can be found.” He went on to point out that “America is friends today with former enemies. Some of our closest allies, decades ago, fought on the opposite sides of these World Wars. This history should give us all faith in the possibilities for a better world.” If this outlook ever comes to inform the actual policies of the Trump presidency it would give grounds for hope, but as of now, any such hopes are mere indulgences of wishful thinking, and as such, diversions from the one true progressive imperative of this historic moment–political resistance to Trumpism in all its manifestations.
Dark lines of policy have also been set forth by Trump. The angry defiance of his Inaugural Address, the belligerence toward China, threats toward North Korea, exterminist language in references to ‘radical Islamic’ extremism and ISIS. Trump’s belligerence toward the world is reinforced by lauding military virtues and militarism, by appointing generals and civilian advisors to top positions, and by boosting the military budget at a time when the United States already spends almost as much on its military machine as is the total of military expenditures by all other countries, and has only a string of political defeats to show for it.
These contrasting Trump imaginaries create an atmosphere of foreboding and uncertainty. Such a future can unfold in contradictory ways. At present, the forebodings clearly outweigh the hopes. Although Trump speaks of fixing the decaying infrastructure of the United States and not wasting trillions on futile wars, especially in the Middle East, his inclinations so far suggest continuity in such brutal war theaters as Syria, Yemen, and Libya.
We have reached a stage of human development where future prospects are tied to finding institutional mechanisms that can serve human and global interests in addition to national interests, whether pursued singly or in aggregate. In this central respect, Trump’s ardent embrace of American nationalism is an anachronistic dead end.
What I find particularly discouraging about the present bipartisan political mood is its near total erasure of the United Nations and international law. These earlier efforts to modify and ameliorate international anarchy have virtually disappeared from the political horizons of American leaders. This reflects a loss of the kind of idealism that earlier energized the political imagination of those who spoke for the United States ever since the American Revolution. There was admittedly always much hypocrisy and self-deception attached to this rhetoric, which conveniently overlooked American geopolitical ambitions, slavery, and devastation visited on native Americans. It also overlooked imperial maneuvers in the Western Hemisphere and the ideologically driven foreign policy of the Cold War era that brought death, destruction, and despair to many distant lands, while keeping a dying European colonialism alive for many years by deferring to the warped logic of the Cold War.
Finally, I believe that the agenda of resistance to Trumpism includes a defense of the United Nations, and what its Charter proposes for the peoples of the world. We need a greatly empowered UN, not an erased UN.
Tags: America First, geopolitics, Israel First, nationalism, Trump worldview, UN, UN-bashing, US foreign policy