Part IV: Background and the Context of Exceptionalism

The chief prosecutor of the International Criminal Court (ICC) in The Hague, Fatiou Bensouda, determined that the ICC has jurisdiction and can investigate both Israeli and Palestinian behaviour, even though Israel is not a member of the court, even though the US, which is also not a member, firmly opposed any probe that targets Israel “unfairly,” and even though Prime Minister Netanyahu of Israel called not only “Foul!” but accused the ICC war crimes probe as representing the essence of antisemitism.

An ICC investigation is a very serious matter that could seriously affect Israeli officers and soldiers and subject them to arrest warrants if they travel outside of Israel. Although the probe promises to investigate Palestinian behaviour as well, both the Palestinian Authority and Hamas welcomed the investigation – in stark contrast to the reaction of Israelis and the Israeli government. Before going into the question of whether the investigation is likely and what pushed it ahead at this time as well as the implications for Israeli citizens, it will be helpful to understand the historical background and current political context in which the court operates.

Without going into the full history of the ICC, a sketch may be helpful. Of course, history becomes concrete when you visit a building or set of buildings that embody that history, such as understanding democracy somewhat better by visiting The Capitol in Washington, D.C. A visit to the Peace Palace in the Hague in The Netherlands plays such a role in understanding international criminal justice. Visit The Hague. Walk into the library and its collection of books on international jurisprudence. Pull off the shelf The Rights on War and Peace: Including the Law of Nature and of Nations by Hugo Grotius, a seventeenth century Dutch philosopher. Hugo Grotius (1583-1645) is justifiably known as the father of international law.

The primary function of international law is to enhance the prospect of peace in this world. The building in The Hague housing the ICC is not known as The Peace Palace for nothing. The pursuit of international peace has been a two-pronged effort through creating international political institutions, like the League of Nations and the United Nations, and legal institutions culminating in the International Criminal Court (ICC). In the library of The Peace Palace, can be found a very large painting of Dutch gentlemen wearing robes and legal collars. The painting is a large portrait at the centre of which and standing alone with a scroll in his hand is Hugo Grotius.

A central focus of concern for Hugo Grotius was the reconciliation of national interests and the avoidance of war as a means of settling disputes. But for Hugo Grotius, in order for there to be international law, there first had to be nations and national interests. That is why Grotius should be as renowned for his re-conceptions of the modern nation-state as much as for his work in providing a foundation for international law. Grotius was a theologian as well as a philosopher. He read Hebrew and was deeply immersed in and knowledgeable about the Torah and Jewish Talmudic commentaries. Grotius envisioned extending the rule of law rooted in revived nation-states, such as The Netherlands, and by way of treaties among those states to make international law a reality.

The nation-state was the primary political creation emerging out of tribal culture recorded in the biblical narrative. As Hugo Grotius insisted, “A state is the perfect body of free men united together to enjoy common rights and advantages.” Each nation has a distinct culture and various interests, but the basic foundation of the nation-state is the rule of law to mediate disputes among and between individuals and various tribal cultures that the nation-state is intended to supersede. International law is simply the extension of the rule of law to the international sphere and the governance of conflicts among competing nations to enable conflicts to be resolved through the rule of law rather than through violent conflict. Scholars may publish in the academic journal, Grotiana to sort out the many conflicts in interpretations of Grotius, but the overall outline is reasonably clear, For a useful introductions, one can consult Renée Jeffery (2006), Hugo Grotius in International Thought.

To bring Hugo Grotius centre stage to the conflicts over the creation and development of the ICC, reading a 1999 article like that of Marcell David in the Michigan Journal of International Law (28:2, 337-412) “Grotius Repudiated: The American Objections to the International Criminal Court and the Commitment to International Law” won’t bring a reader up to full speed, but he or she would then have an initial driving lesson in wading through the thicket of disputes over the ICC. That very long essay begins with this summary:

“We no longer live in a world where narrow conceptions of jurisdiction and sovereignty can stand in the way of an effective system of international cooperation for the prevention and control of international and transnational criminality.”‘ In July 1998, in recognition of this incontrovertible proposition, 120 states took the first steps towards the creation of an international court with jurisdiction over the most serious of international crime-aggression, genocide, crimes against humanity, and war crimes-by adopting the Rome Statute for the International Criminal Court (the ‘Statute’ or the ‘Rome Statute’)”.

Israel and the United States initially supported and were involved in the preparations for the creation of the ICC, but neither country signed the Rome Statute. Further, the US became the most vociferous objector and encouraged other countries not to join the court. Americans objected to the court on the following grounds:

• As constituted, the results would be absurd.
• Instead of increasing participation in peacekeeping missions by member states, participation would be inhibited.
• There would be a potential to trivialize international justice by initiating legal actions against any alleged perpetrator of war crimes, crimes against humanity, genocide and aggression,
• It would encourage politically motivated charges, specifically against United States citizens because of their country’s role in ensuring international security, and against Israel because of its precarious security position and existential need to defend its national security.

In this series of blogs, of necessity I will spend very little time expanding upon:  

• The definitions and clarification of the crimes covered by the ICC
• The role of the Prosecutor
• The relationship between the ICC and the UN Security Council,

and instead concentrate on the Court’s jurisdiction over states not party to the Statute.

In my prefatory blogs using movies as an introduction, my last one was on the abuse of human rights of alleged enemy combatants in the name of both national and international security. The movie review prior to that was about unequivocal war crimes committed by the Nazis against enemy combatants, Americans (and British) became victims.of international aggression and war crimes as well as perpetrators. The Rome Statute recognizes those opposite possibilities and, in the first instance, relies on state statutes and courts to adjudicate such charges and only serve as a “last resort” in the case of failed states or the case of failures of states to properly apply the statute.

In other words, state responsibility is the foundation of establishing interstate responsibility, but in a context in which the courts are a long way off from establishing a substantive body of case law to adjudicate all the conflicts over interpretation. The instances of alleged abuse of international law arise mainly when states exercise rights of national defence against other countries when there is no UN Security Council resolution authorizing such defensive actions, in the case of the United States, this happens because of its doctrine of exceptionalism and its self-adopted responsibility as the leading state guaranteeing international security. In the case of Israel, exemption is claimed because of the alleged bias of the United Nations in dealing empathetically with Israel’s national security needs.

Let me begin, not with Israel, the main country that is the subject of this series of blogs, but with the United States, specifically the American doctrine of exceptionalism. And I am not talking about the jingoist rhetoric of Donald Trump and his nation firster followers, or his internationally imperial aggressive predecessors, Dick Cheney and Donald Rumsfeld that propelled America illegally into the war against Saddam Hussein on the fraudulent claims that Iraq had weapons of mass destruction and was also a backer of al Qaeda. I am talking about liberal exceptionalism as espoused most vocally currently by President Joseph Biden.

The Republican Party brought the American doctrine of its exceptionalism into disrepute following the invasion of Iraq and seemed to seal the coffin on America as the city on the hill and the supreme icon of democratic values when its own citadel of democracy was attacked by an insurrectionist mob incited by the country’s own president. The 6^th of January riot, the violent assault on the heart of American democracy, announced to the world the“end of the road for American exceptionalism.” America as an icon had long suffered not only from its excesses in the international arena, but from its gross failures domestically:

• The richest country in the world, but one in which, as an exception to all developed economies, half the population was served by a health system characteristic of the Third World.
• The impotency of the political system in passing legislation given the obstructionism of the Republican Party to fundamental principles of governance and its gerrymandering and efforts at voter suppression to retain minority political control.
• The failures not only of the health system epitomized by the largest death toll from Covid-19 per population of any developed country, the fractured political system, but an economic system in which the well-being of both the working and middle classes has been stagnant for decades while the wealth of the 1% increases exponentially.

The United States as an upholder of the ideals of international law has to be understood within this larger context. Instead of a global exemplar, the US had become an object of both derision and pity. But, led by Joe Biden, American liberals are fighting back once again to occupy their place in the sun. The Republicans and Democrats are united in cheering on American innovation and peerless can-do spirit.

Biden and his cohorts believe in America as the exemplar of democratic virtues. the righteousness of American values and its liberal ideals. For in the words of Peter Bainart, American exceptionalism is an article of religious faith, a theological principle rather than a description of historical fact. Further, given the realities that belie the ideal, it has become not a promise but a form pf “magical thinking” when it comes to Afghanistan, Iran, Iraq and the multitude of wars around the world.  Further, the paucity of any claims to exceptionalism is exemplified by the domestic politics and condition of American society in the contemporary world.

Israel has its own claims to exceptionalism in its mistreatment by the United Nations, the disproportionate enmity directed its way, the double standards by which its behaviour is assessed. It is an exceptionalism of victimhood certainly justifiably rooted in a long history of antisemitism culminating in the murder of six million Jews by the Nazi regime. Except this tale of exceptionalism is now tied to a number of contemporary paradoxes. Israel is the strongest military power in the Middle East and the twelfth strongest in the world. Israel is the start-up nation par excellance. Israel has immunized a far greater portion of its population against Covid-19 than nay other nation. In the context of these exceptionalist claims, the American and Israeli dissent from accepting the international criminal court’s actions against Israel must be examined.

I am, of course, assuming that the fundamental principles of international law exist rather than simply a set of moral and normative guidelines. That means that individuals can be held accountable if they do not behave in accord with those legal principles. Further, in addition to holding individuals accountable, there must be a system to both clarify and interpret those norms as well as enforce them. Powerful nations which insist on an exemption or pariah states which claim their exile from the community of nations because of a failure in the international system rather than its won decisions, fundamentally detract from the effort to establish universal jurisdiction for international law. Otherwise, only political interests, not international law, will govern the behaviour of  individuals and nation-states in the international arena.

Passover is almost here. Grotius rooted his “right of resistance” of subjects within a sovereign state or empire, not on the basis any inalienable rights possessed by a people either to land or self-government, but to the absolute necessity to defend oneself and survive as an individual or a nation in the face of powers that turn their swords against innocent subjects – provided such resistance does not result in an even bloodier mess as in the Syrian Civil War. The principle behind this conception is not inalienable rights but “extreme necessity.” The question is the extent to which such necessity can be reconciled with the rule of international law.