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 
Bolton’s Red Sky Worldview: ICC, International Law, and Iran
26 SepBolton’s Game: Not Sovereignty, Not International Law—Clearing the Path for U.S., Geopolitical Primacy
To be sure, on September 10thJohn Bolton, Trump’s National Security Advisor, pushed all the thematic buttons that might beexpected of a luncheon speaker invitedto address the Federalist Society, long known asthe ideological home of rabid advocates of the so-called ‘new sovereignty.’ The hallmark of this pre-Trump neocon law bastion of Scalia worshippers was their role in the career nurturing of such jurisprudential embarrassments as John Yoo and Jack Goldsmith. Yoo the notorious author of the torture memos and Goldsmith the public servant usually give credit forcrafting an expert approval text validating ‘extreme rendition’ of CIA suspects to notorious ‘black sites,’ known around the world as safe havens for torture, surely acrude instance ofex parte criminal legalism. It should be noted that both of these individuals are senior faculty members at two of America’s finest law schools, UC Berkeley and Harvard, both of which exhibit institutional pride in the fact of treating legal ethics as integral part of professional education.
John Bolton was the safest of choices as a featured speaker, having earned his Federalist Society credentials many times over. He seems perversely proud of leading the unprecedented effort on behalf of George W. Bush in 2002 to ‘unsign’ the Rome Statute, the treaty that brought the International Criminal Court (ICC) into force in 2002, and now has 123 sovereignstates as parties, including all NATO members except the U.S. and Turkey. At the talk, Bolton paused to boast of orchestrating this unusual move to highlight and underscore this repudiation of the ICC by the Bush presidency, and in the process, of the crusading success of a transnational civil society movement and a coalition of moderate governments around the world to institutionalize individual accountability of political leaders and military commanders for war crimes and crimes against humanity. It should be humiliating that such a global undertaking to strengthen international criminal law enforcement is regarded as posing a direct threat to Americans and governmental policy. It puts a preemptivetwist on the previous reliance on ‘victors’ justice’ to ensure that none of the Allied crimes during World War II would be subjected to legal scrutiny while the crimes of German and Japanese political leaders and military commanders were being prosecuted.
Actually, even if Bush had not bothered to have the Clinton signature removed, the U.S. would never in this dark period of anti-internationalism have joined the ICC. To become a party to the treaty would have needed the additional step of ratification of the Rome Statute, and that would require an affirmative vote of 2/3rds of the U.S. Senate. A favorable outcome would have been even more unlikely than for Donald Trump to nominate Anita Hill or Robert Mueller as his next choices for the U.S. Supreme Court. In this sense, only the up tempo language of Bolton is notable for its willingness to denigrate and even smear the ICC.
Slick Willy Clinton had his own reservations about the treaty and never took the normal step following an official signature of a negotiated inter-governmental agreement of submitting it for ratification. Indeed, it is a technical violation of customary international law that imposes a good faith obligation on governments to seek formal adherence of signed treaties in accordance with constitutional procedures of the particular state. In other words, even the supposedly liberal side of American political life has opted out of its earlier tradition of supporting the institutional development of the Rule of Law on a global level as an aspect of its commitment to the role of law and institutions as essential ingredients of a peaceful and just world order.
Congress removed any doubt as to its hostility toward the ICC when in 2002 it passed the American Service-Members’ Protection Act, authorizing the President to use all necessary means, even force, to prevent prosecution at The Hague of Americans accused of war crimes or crimes against humanity. What is especially disturbing about such a slap at criminal accountability is the absence of slightest show of concern as to whether the allegations in a particular case were well grounded in evidence or not. When Bolton alluded to this bit of ultra-nationalism he appropriately noted that the legislation enjoyed bipartisan support, which suggests that the American posture of claiming ‘lawless geopolitics’ for itself is a fixed feature of world order for the seeable future no matter who occupies the Oval Office. It is ironic that while criminality is ensured of impunity, the practice of impunity, a dubious encroachment on the logic of legality, is not only claimed but offered that most unusual feature of international enforcement.
Bolton implied that the problems of criminality in world affairs are associated with the leaders of the foreign adversaries of the United States, identifying such individuals as Saddam Hussein, Hitler, Stalin, and Qaddafi. His assertion implied that the good behavior of the United States and its allies was such as to be inherently benevolent and the bad behavior of its adversaries would require more than law to deter: “The hard men of history are not deterred by fantasies of international law such as the International Criminal Court.” We can only meekly ask, “Are the supposedly soft men of history, such as Trump or G.W. Bush, any less undeterred?” “And why should we ever expect these hard men to be deterred if the ICC and international law are but ‘fantasies.’
Getting back to Bolton’s luncheon remarks, his own summary of his feverish assault on the audacity of the ICC to consider investigating Israel’s international crimes, and the alleged crimes of the Taliban and the United States in Afghanistan reads as follows:“This administration will fight back to protect American constitutionalism, our sovereignty, and our citizens. No committee of foreign nations will tell us how to govern ourselves and defend our freedom. We will stand up for the US constitution abroad, just as we do at home. And, as always, in every decision we make, we will put the interests of the American people first.”
These are predictable sentiments, given the occasion and taking into account Bolton’s long advocacy of a militarist foreign policy that disregards the restraints of law, morality, and political prudence. It isthe ethics and politics of this disregard that is Bolton’s realmessage. We should be attentive to this real message hidden within the fiery ‘sovereignty, first’ verbiage, which is that the geopolitical practices of the United States will not be subject to legal accountability no matter how flagrant the violation of fundamental norms might be in the future. Bolton may overstep the bounds of the liberal order when he attacks the ICC as an institution, which had not been previously treated as a threat to American foreign policy. Only recently did it dawn on Washington policymakers that the ICC might at some point actually challenge what the U.S. and its allies, most notably Israel, are doing in the world.
Previously, the U.S. was a supporter of criminal accountability of foreign leaders, especially if they were adversaries of the U.S.. It should be remembered that even during the Bush presidency, the government sent dozens of government lawyers to Iraq to help prepare a war crimes prosecution of Saddam Hussein and his entourage after their capture. This capture occurred in the course of a war of aggression initiated against Iraq in 2003 without any prior provocation. The U.S. attack, regime change, and long intrusive occupation took place, it should be recalled, despite the failure of the U.S. Government to secure the support of the UN Security Council despite a feverish attempt to gain authorization.
In other words, so far as even the Boltons of this world are concerned, there is nothing wrong with criminal accountability of leaders and military personnel so long as the indictments, prosecutions, and punishments are confined to enemies of the United States. Such a self-serving geopolitical appropriation of international criminal law should not be confused with legitimate law, which presupposes that the rules, norms, and procedures apply to all relevant actors, the strong as well as the weak, the victors as well as the defeated, geopolitical wrongdoers as well their adversaries.
What is sad about the Bolton worldview, and indeed the new sovereignty ideologues that shape the public image of the Federalist Society, aside from its influence in the Trump Era, is that it completely misunderstands the relevance of international law in this period of global interdependence and planetary challenge. State-centric world order as beset by geopolitical rivalries is a blueprint for civilizational collapse in the 21stcentury, and probably represents the worst possible way to uphold core sovereign rights and national interests over time.
What is still sadder is that the Bolton/Trump worldview, which seems so outlandish and anachronistic is not that extremist, compared to Democratic establishment approaches, when it comes to behavior. It represents a surreal rhetorical extension of the bipartisan consensus that is complacent about the failures of the neoliberal international order, including especially the destructive impacts of predatory globalization on democratic forms of governance, on safeguarding of social and economic rights, and on ecological sustainability.
As many have noted Hilary Clinton’s push toward a confrontation with Russia was more in keeping with Bolton’s preferred foreign policy than the more accommodationist proposals of Trump during his presidential campaign. It is against such a background that I reach the lamentable conclusion that when it comes world peace and global justice the Democratic Party establishment has little to offer when it comes to foreign policy, and may be more inclined to initiate wars and raise geopolitical tensions than even their reactionary and militarist Republican rivals. Bernie Sanders, although international affairs is not his strong suit, at least gestured toward a less militarist and dysfunctional foreign policy. For the Democratic Party to generate enthusiasm upon American youth and the deeply discontented in the country it must reinvent itself by embracing progressive and forthcoming policies than in the recent past and positions that are more constructive and programmatic than even the Sanders foreign policy. Without such bold moves there will be a loud sigh of relief when Trump loses control of Congress in November, and even louder one when Trump leaves the White House, but the American ship of state will still resemble the maiden voyage of the Titantic.
As if to confirm the analysis above we should take account of Bolton past warmongering toward North Korea including advocating a preemptive strike, and recently articulating grossly unlawful threats of force directed at Iran. It should be appreciated that contemporary international law, as embodied in Article 2(4) of the UN Charter forbids threatsas well as uses of aggressive force.
Such a prohibition underlines the criminality of Bolton’s recent formulations of military threats directed at Iran: “I might imagine they [“the mullahs of Tehran”] would take me seriously when I assure them today: If you cross us, our allies, or our partners; if you harm our citizens; if you continue to lie, cheat and deceive, yes, there will indeed be hell to pay.” Such chilling words must be understood in the context of Bolton’s past advocacy of bombing Iran and of the Trump approach to the region that can be summarized in a few words: ‘do what Netanyahu wants.’
Even if war and aggression do not actually occur, and we must pray that they do not, this kind of geopolitical bullying by a leading official of a country that has up to one thousand military bases spread around the world should be criminalized, and not just criticized as intemperate.
Tags: Bolton, Bolton Worldview, Federalist Soceity, geopolitical bullying, International Criminal Court, Iran, Threats