If The Hague arrests Israelis, the US shouldn’t stop it

The United States and its ally Israel could soon get awkward tidings from the International Criminal Court (ICC) in The Hague. The ICC shouldn’t be confused with another tribunal in The Hague, the International Court of Justice (ICJ), which hears cases brought against nation-states.

By Andreas Kluth

The United States and its ally Israel could soon get awkward tidings from the International Criminal Court (ICC) in The Hague. And as in some previous cases, Washington will be tempted to do the convenient rather than the principled thing, dismissing the tribunal as irrelevant and thereby undermining one of the greatest achievements of postwar American leadership: the development of international humanitarian law.

The ICC is the world’s only supranational tribunal that can try individuals for war crimes and other atrocities. As such, it’s now thinking about issuing arrest warrants for alleged crimes committed in Israel and the Gaza Strip before and after October 7. Controversially, it may target leaders of both Hamas and Israel, possibly even Prime Minister Benjamin Netanyahu.

The ICC shouldn’t be confused with another tribunal in The Hague, the International Court of Justice (ICJ), which hears cases brought against nation-states. The ICJ is also causing headaches for the US and Israel: In one case, judges are deliberating whether Israel is committing genocide in Gaza. In another, though, the court this week rejected a plea by Nicaragua that would have forced Germany to stop sending Israel weapons.

The ICC’s arrest warrants, by contrast, would have few practical consequences. Israel, like the US, is not a signatory to the Rome Statute that created the tribunal in 2002 ; both governments deny its jurisdiction. The ICC doesn’t have its own police force or army— a recurring problem with enforcing international law in general— so it can’t lock up anybody unless that person travels to a signatory country and its government puts on the handcuffs.

That situation would still create diplomatic dilemmas, of course. Something similar happened last year, when the ICC issued a warrant against Russian President Vladimir Putin for his role in the mass abductions of Ukrainian children. South Africa, a signatory to the Rome Statute, asked him not to attend a summit it was hosting so it wouldn’t have to arrest him, and Putin stayed put in the Kremlin. (That same South African government, incidentally, also brought the genocide case against Israel at the ICJ.)

Politically, the ICC’s warrants would amount to a disastrous indictment of Israel, and by extension its US ally, in the court of world opinion. Netanyahu or other Israelis would be named alongside not only Hamas terrorists responsible for the atrocities of October 7, the worst slaughter of Jews since the Holocaust, but also imperialist aggressors such as Putin and other war criminals and dictators the ICC has gone after over the years. Israel would howl with indignation. So would the administration of US President Joe Biden.

Denying the court’s legitimacy, however, would also shine a spotlight on what much of the world sees as outrageous American hypocrisy. The US was one of the architects of the Rome Statute during its drafting in the 1990s. But it then turned against its own creation, over fears, imagine! — that the court could hold US citizens to the same standards applied to other peoples.

In 2002, the US even passed a law, sardonically dubbed “the Hague Invasion Act,” that would let the White House send troops to free Americans arrested by the ICC. In 2020, when the court investigated allegations against US soldiers in Afghanistan, the administration of Donald Trump sanctioned an ICC judge and a lawyer. (Biden later lifted the measures.) And yet the US cooperates with the ICC when it happens to agree with the court (vis-a-vis Putin, say).

This cherry-picking ambivalence fits a pattern. Washington has helped birth the institutions of international legalism only to repeatedly boycott or ignore them later. For example, the US refuses to ratify the Conventions on Cluster Munitions, on the Law of the Sea, on the Rights of the Child and even on the Rights of Persons with Disabilities. This transactional approach explains why Washington rarely invokes “international law” to justify its policies, defaulting instead to the woolly phrase “rules-based international order” — which implies that the US only keeps rules it also makes.

None of this American dithering surprises “realists” in international relations, since the US, as a great power, is simply acting in what it perceives to be its national interest. Cumulatively, however, it has a tragic side effect, which is to whittle away at international law generally, and humanitarian law specifically, a body of norms largely shaped by the US in its role as leader of the free world.

Humanitarian law enshrines norms in war, no matter whether or not the war in question is just. It has developed gradually since Hugo Grotius, a Dutch humanist, first began to codify it in the 17th century. The main goal is to distinguish between combatants and civilians, and to protect the latter. For example, the first Geneva Convention, signed in 1864, banned attacks on hospitals and doctors, among other things. Many other treaties then elaborated.

The biggest leap came after World War II, when the US, at the peak of its relative power, decided to ensure that the worst horrors should never happen again. It did this in sundry ways, from punishing war crimes at the Nuremberg and Tokyo trials to co-founding and co-hosting the United Nations. But among the crown jewels of this new order were the four Geneva Conventions of 1949, and their additional protocols in the 1970s (which the US, reverting to type, signed but didn’t ratify).

Those protocols codify in particular the principle of proportionality. It says that if armies can’t avoid civilian casualties in the course of fighting enemy forces, the collateral damage must not be excessive in relation to the tactical military advantage to be gained; you can’t take out an apartment building to kill a sniper, say. Proportionality is now what Israel is accused of violating in Gaza, by dropping bombs (provided in part by the US) on combatants and civilians alike.

But the law of war began eroding long before October 7. One reason is that war increasingly involves non-state actors, such as the Islamic State or Hamas, in conflicts that blur the crucial distinction on which humanitarian law rests. Is a woman in plain clothes who plants a bomb a combatant or a civilian? What about a hospital in which terrorists also hide weapons?

Rather than updating humanitarian law over the years, the US instead led and accelerated its drift, especially after the terrorist attacks on September 11, 2001, argues Oona Hathaway at Yale Law School. It adopted a new definition of self-defense and a new doctrine that legitimates attacking countries if they’re “unwilling or unable” to suppress terrorist threats.

Moreover, the US, like Israel, takes the view that any site can be a legitimate bombing target as long as it qualifies as “dual use” for civilian and military purposes. That covers most of the Gaza Strip. Israel, thinks Hathaway, has also twisted the concept of proportionality: Instead of weighing the military objective in each strike, Israel considers collateral damage in relation to the overall war aim of preventing a future Holocaust. Such existential dimensions burst all limits.

The law of war is therefore in the worst crisis since the 1940s, and at risk of reverting to the rudimentary standards of Grotius’s time. And as humanitarian law goes, so will international law in general. This crisis forces the US— nobody expects Russia or China to care a whit, to make a strategic decision.

Washington can keep invoking the rule of law selectively to suit itself and allies such as Israel, at the cost of alienating more countries and people abroad. Or it can reassert the leadership role it assumed in the 1940s. That would mean refining the laws of war to fit new circumstances, and then sticking to the rules like everybody else. A great first step would be to sign the Statute of Rome; to recognize the International Criminal Court even when it hurts; and then to trust that everybody, friend or foe, gets a fair trial, leading to a verdict that stands.