The International Criminal Court
(ICC) issued arrest warrants for Israel’s prime minister, Ben Netanyahu, former
defense minister, Yoav Gallant, and the military commander of Hamas on November
21, 2024. With the world having had centuries wherein national sovereignty has
been the basis of the international order, the heads of national governments
could be expected to instantly bolt from just being indicted by an
international court. Since the world woke up in 1945 to learn of the Nazi atrocities
against Slavs (20 million), Jews (6 million), intellectuals and gays, whether murdered
in concentration camps or on the proverbial street, as well as reading as years
went by of Stalin’s mass-graves from his government’s mass-murders of Ukrainians,
Poles, and even Russians, the hegemonic doctrine that the sovereignty of a
state should be absolute has been barely subject to any resistance. So when the ICC has issued arrest warrants, it has been up to national
governments around the world to enforce the warrants by arresting the heads of other governments charged with having violated international law. This weakness in the
constraint on what would otherwise be absolutist national sovereignty attests
to the marginal degree to which that doctrine has actually been questioned
since 1945. In other words, the international order can be said to occupy a
rather uncomfortable ‘betwixt and between’ position with respect to whether the
sovereignty of countries should be constrained internationally. Not until
international law comes complete with real enforcement powers will the world be
able to say that heads of governments (and of state) are no longer in a state
of nature as described by Thomas Hobbes in his tomb, Leviathan.
In the case of Israel and Hamas,
the nature of their respective crimes is such that the doctrine of absolute
national sovereignty can legitimately be discarded and replaced by a doctrine
of relative national sovereignty. The ICC’s judges said there were “reasonable
grounds” that the three defendants bore “criminal responsibility” for alleged
war crimes and crimes against humanity since October 7, 2023,[1]
when Hamas murdered 1,200 Israelis and kidnapped a couple hundred more. In
(over) response, or retribution as “punishment,” the Israeli military had
killed over 44,000 residents of Gaza and made over a million more homeless by
the time the ICC issued its warrants. Israel even dropped bombs on the tents
being used by the homeless residents. The scale alone of the suffering can be seen
as an indictment on the doctrine of absolute sovereignty, which had been able
to protect more than one head of a national government in the world.
In fact, during the very month in
which the ICC announced the three warrants, Russia’s President Putin signed a revised,
more flexible government policy on when the country’s military could use
tactical nuclear weapons and was still having the military bomb civilian
targets. Even the U.S. Embassy in Kiev was no longer safe from becoming a
target. To be sure, the ICC had already issued an arrest warrant for Putin, but
it was an easy matter for him to avoid being arrested. Netanyahu too could be
expected to easily evade capture. Besides being able to stay in their respective
countries, they could safely visit the respective allies. Often missed is the
hesitancy that other, third-party governments, have in arresting the heads of
other governments. Besides not wanting retaliation, it is easy for a country’s
government to ignore the ICC’s requests. The ICC’s enforcement mechanism has
been, in short, like a bad joke.
It is precisely such a lack of
respect for the international court and international law itself that led Netanyahu’s
office to condemn the ICC’s warrants against the prime minister and the
former defense minister as “antisemitic.”[2]
Of course, the warrant against the commander of Hamas’s military was not said
to be a case of prejudice against Muslims. In fact, Gallant, the former Israeli
defense minister, objected that the ICC was placing “the State of Israel and
the murderous leaders of Hamas in the same row, and thus legitimizes the murder
of babies, the rape of women and the abduction of the elderly from their beds.”[3]
The ICC was not so legitimizing the events of October 7, 2023, as the court
issued a warrant for a Hamas high official too.
The court found reasonable
grounds that Hama’s Deif was “responsible for the crimes against humanity of
murder; extermination; torture; and rape and other form[s] of sexual violence;
as well as war crimes for murder, cruel treatment, torture; taking hostages;
outrages upon personal dignity; and other form[s] of sexual violence.”[4]
While this may seem duplicative, crimes against humanity are legally distinct
from war crimes. Regarding Netanyahu and Gallant, the court found reasonable
grounds to believe that they “each bear criminal responsibility for the
following crimes as co-perpetrators for committing the acts jointly with
others: the war crime of starvation as a method of warfare; and the crimes
against humanity of murder, persecution, and other inhumane acts.”[5]
If the Israeli government officials still needed an explanation for why the
court was putting them in the same criminal category with the Hamas official, perhaps
contrasting 44,000 dead and over 1 million homeless with 1,200 dead and only a
few hundred homeless (i.e, taken as hostages)—many of whom had been able,
unlike the Gaza residents, to return to find a house or apartment building
still standing. Just the fact that Israeli officials objected not just to the equivalence
in the ICC’s charges, and thus situating both Israeli and Hama officials as
defendants and thus in this way equivalent even though Israel’s military response
had been disproportionately bad, and add the Israeli President’s
reaction that such charges being applied to Israel was “outrageous” points to
the conclusion that given how warped human judgment can be, the doctrine of
absolutist sovereignty for national governments was a truly bad idea—indeed, even
bafflingly so—and yet it is a part of the status quo in the global order. Such
a mental feat devoid of reason (not to mention serious resistance) suggests
that the doctrine flies in the face of human nature.
Given the salience of greed the
thirst for power that are so indelible in human nature, the U.S. was still
selling military weapons to Israel and the Biden administration had not courageously
resisted the notoriously strong American Israeli lobby (the AIPAC). So the U.S.
Government had a vested economic and political interest doing two things at the
expense of human rights and international law: 1.) being the single veto at the
UN Security Council against a resolution the day before that would have stipulated
an immediate ceasefire, the removal of Israel’s military from Gaza, and the
unconditional release of the hundred or so remaining Israeli hostages being held
by Hama; and 2.) rejecting the ICC’s warrants for the two Israelis (but curiously
not the one against the Hamas commander)—both in the same week! Countering the
vested interest of the U.S., the E.U., a third party to the dispute/war, more
objectively stated that all three warrants should be respected and enforced.[6]
Given the magnitude of killing and destruction in Gaza, going much beyond the
heinous acts of Hamas on October 7, 2023, the position of the E.U.’s foreign
minister could indeed be viewed as being relatively objective, mature, and even
ethical.
Lest it be objected (by Israel
and its enabler, the U.S.), that neither the U.S. nor the sovereign state of
Israel had signed documents agreeing to be covered by the ICC’s jurisdiction, “the
court [had] ruled in 2021 that it had jurisdiction over the occupied West Bank,
East Jerusalem, and Gaza because the UN’s secretary general had accepted the
Palestinians” constitute a member of the UN.[7]
Just because Israel does not recognize the Palestinians politically does not
mean that the UN and the ICC could and should not do so.
In short, like Russia’s Putin, Israel’s Netanyahu and the U.S.’s Biden conveniently rejected the very validity of international law, and perhaps that position is fair because law without an enforcement mechanism can only really be a resolution or policy befitting an international realm with no sovereignty having been delegated to it from the world’s countries, whose government officials have gotten used to enjoying the doctrine of absolute national sovereignty serving as the bedrock of the global order. Reading slowly through the detailed charges promulgated by the ICC might get a person to reconsider whether, given human nature, the world hasn’t made a mistake in allowing it to become the status quo and thus enjoy considerable inertia even in the face of horrendous atrocities in Gaza as well as Ukraine with the perpetrators—national governments and their respective officials—being able to act with the smug sense of impunity. It is a pity that the national governments adopted, whether explicitly or by not rejecting it in action, such flawed doctrine as an important geo-political element of the status quo. Even if the world comes to realize that the squalid doctrine has enabled abuses of power by national governments, the very nature of the status quo suggests that the doctrine will nevertheless still be likely to enjoy considerable inertia as the power behind the thrones because of the political (and even military) energy needed to dislodge the artifice.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.
