Who Takes International Law Seriously?

If international law is used only as a bludgeon against rivals and pariahs, it will inevitably lose legitimacy.

The Washington Post published a despicable editorial in response the International Criminal Court’s warrants for Netanyahu and Gallant:

But the arrest orders undermine the ICC’s credibility and give credence to accusations of hypocrisy and selective prosecution. The ICC is putting the elected leaders of a democratic country with its own independent judiciary in the same category as dictators and authoritarians who kill with impunity.

If the ICC had not issued these warrants in the face of the overwhelming evidence that the Israeli government was using starvation as a weapon, that would have been devastating to the Court’s credibility in the eyes of most nations. Everyone would have concluded that the ICC had bowed to American political pressure by letting these officials off the hook. It is a victory for international law that they didn’t allow fears of the insane backlash from Washington to influence their decision.

One of the problems that the Court has had since its inception is that Western and Western-backed governments always seem to get a pass when they commit war crimes. Many critics did complain about hypocrisy and selective prosecution in the past because for many years it seemed as if the ICC only went after African leaders. That started to change when the ICC issued a warrant for Putin’s arrest last year. The Post was singing a very different tune then, saying that the Court had taken an “important step” when it did that. There were no complaints about the wrong “venue” at that time. The Post had no objection to the ICC going after a war criminal leader that they oppose.

It will come as a revelation to the Post’s editors, but democratically elected leaders can be guilty of war crimes and crimes against humanity. The ICC did not put Netanyahu and Gallant in the same category as dictators and authoritarians. They did that themselves with their brutal and atrocious policies. If they didn’t want to be classed with other rogue leaders, they shouldn’t have committed such terrible violations of international law.

Spencer Ackerman explained recently that the ICC struck a blow for international law against the so-called rules-based international order. International law isn’t just for one’s enemies or the world’s pariahs, but it has to be applied to all equally if it means anything. As Ackerman put it, “It's sufficient to observe here that international law requires universal application, while the Rules-Based International Order preserves American and allied Exceptionalism, making war crimes less about barred conduct than about who gets to commit it.” Cheerleaders of the rules-based order assume that some people and some states are above the law, and these warrants are a direct challenge to that. That is one reason why there has been such an angry reaction in Washington.

The Post’s whataboutism at the start of the editorial is ridiculous. One reason why the ICC hasn’t brought charges against the leader of Myanmar’s junta, Syria’s Bashar al-Assad, and Gen. Dagalo in Sudan is that, unlike Palestine, none of these countries is a party to the Rome Statute. Those men are all obviously war criminals, but in those cases the ICC really doesn’t have jurisdiction. It is absurd to criticize the ICC for not pursuing cases that it can’t prosecute in order to run interference for other war criminals.

The editors say that “Israel needs to be held accountable for its military conduct in Gaza,” but without an independent international effort to hold their government accountable we know that this will never happen. It is foolish to think Israeli investigations will do anything but exonerate the leaders and the soliders that carried out their orders. No one seriously believes that Israel’s judicial system will ever hold Israeli officials accountable for the crimes they have committed in this war.

The victims of Israel’s war and genocide in Gaza will never get any justice from Israeli courts. The Post’s editors must know that, so it is safe to conclude that they are not interested in bringing the perpetrators to justice. When it comes to crimes committed against Palestinians, Israeli leaders and soldiers almost never have to answer for what they have done. Such is the inherently unjust and abusive nature of the occupation that Palestinians have been forced to endure for more than half a century. Netanyahu may go to prison on corruption charges one day, but it is fantasy to think that he and Gallant will ever face charges in an Israeli court for the slaughter and starvation that they are responsible for in Gaza.

If international law is used only as a bludgeon against rivals and pariahs, it will inevitably lose legitimacy. The warrants for Netanyahu and Gallant are a test to see who is truly interested in upholding international law and who simply wants to use it as a weapon against Washington’s adversaries. Right now most of the American political class and a lot of our media outlets are badly failing that test.