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.
The weakness of the E.U. federal system only made the arrests of the three defendants within that territory especially
unlikely. Put another way, that the ICC would have to depend on the E.U. to
hold its states accountable demonstrates just how weak the court’s enforcement
mechanism was when the court issued the warrants. Hence, the BBC noted at the
time, “Netanyahu and Gallant do not face any immediate threat of prosecution.”[2]
Even though “if either of them set foot in any [signatory country to the ICC’s
jurisdiction], the two men “must be arrested and handed over to the court.”[3]
The E.U.’s foreign minister, Josep Borrell, “said the ICC decision was binding
on all E.U. member states.”[4]
Nevertheless, “Hungarian Prime Minister Viktor Orban said . . . he would ignore
an arrest warrant issued by [the ICC] for Israeli Prime Minister Benjamin
Netanyahu.”[5]
Orban’s refusal to recognize the validity of federal law would imperil the E.U.
were his decision to go against the E.U. requirement to eventually become the norm
with respect to E.U. law in the state governments; it could turn into something
akin to the Nullification Crisis in the early 1830s in the U.S., when it too had
a young federal system and had to contend with South Carolina’s Nullification
Acts. Orban’s disrespect for E.U. law (including regulations and even
directives, which the states have some discretion in implementing) is a
microcosm of the disrespect for international law (and arrest warrants) that
had become the norm at the global level by 2024; otherwise, coalitions of
countries would have literally pushed Putin out of Ukraine and Netanyahu out of
Gaza, as the U.S.’s coalition had pushed Saddam Hussain out of Kuwait in the
early 1990s.
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.”[6]
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.”[7]
The ICC was not legitimizing the events of October 7, 2023 because 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.”[8]
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.”[9]
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 to the
equivalence in the ICC’s charges leveled against Israeli and Hamas officials
even though Israel’s military response had been disproportionately aggressive
and destructive suggests just how warped human judgment can be, and just how
dangerous the doctrine of absolutist sovereignty is as applied to national
governments under which government officials can act with the sense of impunity
from international law having “teeth” internationally. Even that such a misplaced
doctrine had by the 21st century become a part of the status quo in
the global order does not bode well for human nature, which the doctrine
contradicts. That both the presidents of
Israel and the United States called the ICC arrest warrants against Israeli
officials “outrageous” boggles the mind, given the scale of destruction wrought
by Israel in Gaza.[10]
Put more directly, a species capable of such mental feats devoid of reason should
not grant absolute sovereignty to any human being. Giving absolute sovereignty
to people heading a government that has nuclear weapons is a bad idea, and yet the
world, out of fear, has not stood up to keep that from continuing.
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.[11]
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 (as it was 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.[12]
Just because Israel does not recognize the Palestinians politically does not
mean that the UN and the ICC could and should not do so.
Lest it be objected that the ICC,
as a court of last resort, is “supposed to act when domestic courts cannot, or
will not, genuinely investigate or prosecute serious international crimes,” Israel
had had a bit more than a year to do so, but had not even charged Netanyahu of
war crimes and crimes against humanity.[13]
Especially given the judicial reforms that the prime minister had successfully
had the legislature adopt, it would be highly unlikely that the judiciary would
ever hold Netanyahu accountable even for corruption.
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. Tansin Paternoster and Evelyn Dom, “European Leaders Give Mixed Reactions on Netanyahu’s War Crimes Arrest Warrant,” Euronews.com, November 22, 2024.
6. David Gritten “Arrest Warrants Issued for Netanyahu, Gallant, and Hamas Commander Over Alleged War Crimes.”
7. Ibid.
8. Ibid.
9. Ibid.
10. Ibid.; Jaroslav Lukiv, “Biden Says ICC War Crimes Arrest Warrant ‘Outrageous,” BBC.com, November 22, 2024.
11. David Gritten “Arrest Warrants Issued for Netanyahu, Gallant, and Hamas Commander Over Alleged War Crimes.”
12. Ibid.
13. Ibid.
