ICC Indictments Deepen The Crisis of The 'Rules-Based International Order'

Edited by Sam Thielman

THIS MORNING, the International Criminal Court (ICC) announced that it will seek the indictments of Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Gallant and three leaders of Hamas, including the political leader Ismail Haniyeh and Gaza leader Yahya Sinwar. Whether or not those indictments lead to arrests, the ICC is also tacitly placing on trial the world that Washington made. 

Since Oct. 7, I have been writing a lot about how Israel's genocidal actions in Gaza have exposed the longstanding divide between international law and what the U.S. calls its Rules-Based International Order. Click through to those pieces if you're not sure what I mean. But an ICC indictment widens that divide considerably.

Last month, rumors circulated in Israeli and then international media that these indictments were imminent. I didn't know what to believe. More significant than those rumors was the marker the Biden administration placed down. "We don't believe that they [the ICC] have the jurisdiction," White House Press Secretary Karine Jean-Pierre said. 

That was not a statement about international law. The ICC's jurisdiction, over the narrow band of extremely serious crimes that its mandate covers, is aspirationally universal. In other words, to work, the ICC has to seek universal jurisdiction, via states' acceptance of the Rome Treaty establishing it. Otherwise there are simply nations that get to commit crimes against humanity and those that don’t.

But such impunity is the tacit bargain of the Rules-Based International Order, much as it is the prerogative of every state, coalition or empire powerful enough to get away with it. More precisely, the prerogative at work is one that refuses the authority of another power over it, often posturing as a defense of sovereignty. When it comes to the ICC, Biden is following in George W. Bush's footsteps. In 2002, on the eve of the Iraq War and during the most intense phase of the War on Terror, Bush "un-signed" the Rome Treaty and embraced a law warning the court that the U.S. military reserves the right to attack it should it ever indict any American. 

Trump turned the ratchet. When the ICC was considering an inquiry into war crimes committed in Afghanistan—both those of the U.S. and those of the Taliban—the Trump administration placed sanctions on the prosecutors and restricted visas for the prosecutors' families. That act represented a shift in the Rules-Based International Order: from threatening an attack on international law to carrying one out, albeit a legal and economic attack, rather than a military operation. Trump's maneuver worked. Karim Khan, the same ICC chief prosecutor who will pursue the Israel and Hamas indictments, "deprioritized" investigating U.S. war crimes in Afghanistan.  

Biden unwound the sanctions but never re-signed the Rome Treaty, illustrating the difference between the liberal and conservative wings of the Rules-Based International Order. Similarly, while Biden has yet to take any action against the ICC, 12 GOP Senators last month told chief prosecutor Khan, "target Israel and we will target you," as my Zeteo colleagues first reported. 

Whatever ultimately happens with the ICC indictments, word of their imminence makes the "Rules Based International Order" look absurd, and makes Washington's rejection of them look venal. Its recent State Department report on Israeli war crimes took the labored position that those violations of international humanitarian law may have occurred, and they probably have employed U.S. weaponry, but weapons provisions to Israel can continue. That was already ridiculous. But an ICC indictment of Netanyahu and Gallant renders the position untenable. Power, not law and not fact, is the only thing that undergirds the State Department’s official position.

When the ICC moved to indict Vladimir Putin for war crimes in Ukraine, Biden embraced it as "justified"—and here I agree with the president—even while whistling past the implications of accepting the mandate of the court. When the ICC in 2009 indicted Sudan's Omar al-Bashir for war crimes in Ukraine, the Obama-era State Department was more cautious in appearing to accept the legitimacy of the ICC, but still said, "those who have committed atrocities should be brought to justice." Neither Sudan nor Russia are signatories to the ICC, so the U.S. has no problem accepting the court's jurisdiction when useful against its adversaries.

Like everyone else, I don't know if this indictment will have a material impact on the atrocities Israel is committing in Gaza. Gallant has reportedly told Biden national security adviser Jake Sullivan that Israel plans on expanding its offensive into Rafah against U.S. warnings. Netanyahu and Gallant will not be able to travel to Rome Treaty signatory countries without risking arrest. But how many of those countries do they typically visit? Similarly, Qatar voted against the Rome Treaty, and Turkey never signed it, so the places where Hamas operates or may soon seek to operate are also unaffected. Ours is a world of power, not a world of law. And even a world with a more robust international law than our own is going to operate on a continuum with a world of power. 

But a world of power is not the same as a global order that possesses legitimacy in the eyes of the great masses of people worldwide who want Gaza to live and Palestine to be free. A global order that possesses legitimacy does not permit a genocide according to the genocidaires' alignment with the regnant global superpower. And exposing that reality is the broader and more enduring impact of the forthcoming indictments.  

I'M GOING TO ASSUME A HELICOPTER CRASH is just a helicopter crash unless other evidence emerges, but wow. I'm also not going to pretend I know What's Next for Iran. 

MONTHS BEFORE OVERTURNING ROE V. WADE, Justice Samuel Alito denounced as "false and inflammatory" a piece written by one of my best friends, Adam Serwer, that called attention to the lawless abrogation of women's bodily autonomy in Texas that Alito and his colleagues blessed. Not only has Alito proved Adam correct, but now Alito, who will rule on whether Donald Trump can be prosecuted for the January 6 attempt at violently nullifying the 2020 election, has been caught sympathizing with the insurrection. 

Anyone with a sense of honor would resign from the Supreme Court. Recusal is not enough: A Supreme Court justice cannot be an insurrectionist, and Alito is now a one-man Constitutional crisis—the Roberts court’s second. In his desperate attempt to evade responsibility for his actions, this dishonorable coward blamed it on his wife. I'll leave it to Adam to have the final word on Alito. 

WALLER VS. WILDSTORM, the superhero spy thriller I co-wrote with my friend Evan Narcisse and which the masterful Jesús Merino illustrated, is available for purchase in a hardcover edition! If you don't have single issues of WVW and you want a four-issue set signed by me, they're going fast at Bulletproof Comics! 

No one is prouder of WVW than her older sibling, REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP, which is available now in hardcover, softcover, audiobook and Kindle edition. And on the way is a new addition to the family: THE TORTURE AND DELIVERANCE OF MAJID KHAN.