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To believe in an international rules-based order, you have to believe that there are actual rules, or else it's an arbitrary vibes-based order. And while I do like my vibing, the text of the Rome Statute of the International Court is easily accessible and free online.
Not to spoil too much in advance, but the scope of the ICC has limits. There's a reason the preamble to the Rome Statute of the International Court starts with 'The States Parties to this statute' (distinguishing them from States not party to the statute), and emphasizes '
(No, there is no definition of what 'intervene' means in this context. Which means the prohibition is as small, or large, as you want or can get away with.)
But preambles are fluff. Other limits are baked into the law and include where it may exercise its functions and powers-
To wit- by the very rule creating the ICC, the ICC's jurisdiction is explicitly conditional, not universal. It is conditional on a state becoming a party to the Statute, or having accepted the jurisdiction of the Court over the matter (either in general or for the specific issue). If these preconditions are not met, the ICC as a court does not have jurisdiction.
Simply as a principle, the ICC does not have universal jurisdiction. That is a matter of international law.
Now, that's not the end of the matter as it relates to Israel, but it the start of a very significant snarl that will generally require you to presume a conclusion in order to resolve.
Claims of ICC jurisdiction over the Israeli-Hamas conflict hinge on Article 12 Para 2, subparagraph (a), 'The State on which the territory of which the conduct in question occurred.' This is the 'if it occurs on the territory of a State that is a member of the ICC, the ICC has jurisdiction' approach. The ICC position is that the State of Palestine is a member, as of 2015. This gives it the jurisdiction over the territory of it's member, the State of Palestine. What is the territory of the State of Palestine? Well, the ICC position is that it's jurisdiction territorially extends to the West Bank (which is under Israeli military occupation), Eastern Jerusalem (which is annexed by Israel), and the Gaza Strip.
Of course, this itself brings back issues going back to the jurisdiction. Setting aside the first two, the jurisdiction over the Gaza Strip is based on the claim of the ICC-acknowledged State of Palestine, which was admitted in 2015.
Except, of course, that the State of Palestine- as represented by the PLO that is the West Bank signatory- not only wasn't a recognized sovereign state in 2015 by inclusion into the United Nations (which is the primary international organization the ICC text aligns it with in terms of seeking information), it wasn't even in control of the Gaza Strip as a de facto state. The PLO was thrown out of the Gazan Strip- and thrown off buildings in the Gaza Strip- in 2007, nearly a decade before the ICC accession.
In other words, the ICC granted itself jurisdiction of territories not on the basis of the international law, but on the basis of internal decision on grounds of admitting a state not recognized by the United Nations as a sovereign state that said state had lost before joining the ICC. The international law basis of this conclusion is, well, as convincing as it needs to be if you're convinced.
Moreover, even the Article 12-Para B route of jurisdictions runs into the issue that the jurisdiction of actors/territories runs into the questions of jurisdiction of applicable crimes.
This is obviously contested given the hyperbolic propaganda surrounding the conflict, but in a very short form the death tolls we're seeing versus the firepower used are not really consistent with genocidal practices in other contexts unless you stretch the term genocide to it's lesser scopes and extremes that lose moral relevance due to overuse, and the arguments on war crimes typically run into the issue that the laws of war do not actually prohibit targeting military objectives even when civilian casualties are incurred (a common vibes-based misunderstanding).
The category of crime most relevant to the ICC in the context of the Israel incursion into Gazi might be the crime of aggression, which covers all the banal evils of war-
...except that the very same Rome Statute establishing the ICC explicitly forbids that.
Which, in turn, is why the lawfare opposition to Israel in the ICC has to frame issues in terms of genocide, crimes against humanity, or war crimes- because those are the only categories of crimes that the ICC could potentially have jurisdiction of. If one buys the jurisdiction-via-signatory state argument that extends the ICC jurisdiction from the PLO-based West Bank to the Israeli-annexed Eastern Jerusalem and the Gaza Strip.
Except, of course, that the generally accepted internal status of the West Bank is that it is under Israeli military occupation- which goes back to Article 8, which defines the Crime of Aggression
...which returns, again, to the question of jurisdiction.
For the ICC Jurisdiction chain to hold coherently, Israel must not be in a crime of aggression in its military occupation of the West Bank, despite having been accused of illegally occupying Palestine for over a half century, so that there can be a sovereign state of Palestine based in the West Bank to be a signatory state of the ICC, so that said state of Palestine can have territory for the ICC to have jurisdiction over. Said territory was determined by the ICC according to itself, absent any UN-recognized territorial state, to extend to the West Bank, which the nominal State of Palestine did not hold or govern for nearly a decade prior to its accession, so that the ICC may have jurisdiction of crimes against humanity / war crimes / genocide, but not crimes of aggression, in the current conflict between two belligerents, of whom neither are signatories of the Rome Statute.
This is, shall we say, just a little tenuous.
And that's a Good Thing(TM). Much of international law is inapplicable or inappropriate for many parts of the international community, and it would be immoral to force nation-states to be governed by agreements they did not agree to. There's a reason most international arbitration bodies- including the ICC- have clauses that they only apply to non-members if non-members assent for specific situations.
The Americans, much like the Europeans and everyone else in the international relations sphere, are very consistent that they are only bound by international agreements they have agreed to be bound by. That agreement may be a concession, conditional, or even coerced to some degree (though not by all measures), and a lack of agreement may be condemned, but the agreement is required due to the principles of sovereignty involved.
As such, it is quite normal and accepted for states to not only advocate for other people to come in agreements and be bound by international laws they themselves wouldn't want to be a part of- see the non-European support for the European Union accession of various states, or the various environmental conferences- but also seeks exceptions or refuse to partake in other states agreements.
The premise of the rules-based order is not, and never has been, that states are subject to agreements they haven't been party to. Rather, it's been that reneging or violating agreements that one is party to offers basis for action against a state. Not-entering an agreement has always been a different, and generally preferable, state than agreeing to and then breaking international law.
I appreciate the detailed writeup. I will freely concede the following points: your analysis is probably correct, and the ICC's verdict is probably tendentious and politically motivated.
I am, I'm afraid, arguing vibes. The USA's pitch to the world over last half-century of so has been something along the lines of:
"We're here to help. Previously, empires were allowed to bully and exploit smaller countries, but we're different. We intend to put in place a world order that will allow (and require) countries to cooperate and trade with each other on equal terms. We intend to police the world if necessary, but not to rule it."
Given that, for America to exempt itself and its vassals from the international court with jurisdiction over
and to explicitly threaten employees of the court is a very bad look. It makes people start to wonder why America feels that laws around genocide and war crimes are "inapplicable or inappropriate" when applied to America. It brings back memories of the invasion of Iraq. It also brings back memories of things like the unequal extradition treaty between America and the UK. It's as though Bill Gates declared that he was too important to be bound by laws against murder, or at the very least demanded the right to determine whether those laws were being correctly applied to him and his friends on a case-by-case basis.
Precisely as immoral as it is to force people to be governed by laws they didn't sign.
In short, does America sincerely believe that it is too important and powerful to answer to anyone else? America's behaviour suggests that the answer is yes, and any intimations otherwise is 'who, whom' propaganda. The more America resorts to economic and diplomatic coercion, the less interested everyone else is in helping to maintain the system and America's place in it.
Having said all of that, I think that international law is an extremely flawed concept. The idea that one government can enter into an agreement that is considered binding on subsequent governments decades later seems ludicrous and anti-democratic. As with most law, it's ultimately a fudge for applying coercive power in a manner that is mostly accepted and results in minimal fuss. I wouldn't bear America any ill will for saying, "our voters are pro-Israel and we feel the need to act accordingly, regardless of international law" provided that they extended the same courtesy to everybody else.
Understood. And in return, I hate vibe-based policy, especially on the international stage. Vibe-diplomacy is how we go from R2P to slave markets in Libya and a massive discreditation of nuclear non-proliferation concessions by dictators. Vibe-diplomacy is how we get ideological powers like the US running amuck in Iraq because of their vibes of the moment, or revaunchist powers trying to rebuild dead empires by invading their neighbors, and a general lack of consistency and predictability that ruins people in mass when vibes shift. Passion can do many great and terrible things, and as a rule I hate when passionate people act with words backed by nuclear-capable missiles.
Down with vibe-policy. Death to vibe-plomacy.
The International Court does not have jurisdiction over those crimes. The International Court has jurisdiction over the countries that agree it has jurisdiction over those crimes, if those countries are not pursuing it themselves. The jurisdiction is both conditional to a party's membership/consent, and the ICC does not serve as an alternative / appeal for national court cases on the same line of effort.
Your vibes are putting the cart before the horse. The International Criminal Court doesn't simply exist, and then all other countries acknowledge its supremacy on the topic. Other countries exist, and agree with eachother to defer to the ICC for their own reasons. The reasons vary, but most have had a cynical component, include foreign aid bribery.
I would agree it's a bad look, as I'm sure you'd agree those people would be ignorant of what laws the US is bound by, and those people wondering likely weren't reading the ICC's own reports.
There are many reasons that the ICC released reports on its decisions not to pursue charges against the US in the Iraq contexts, and unless you think they're lying in their conclusions due to threats none of them exactly end with 'we conclude the Americans have a policy of -X-, but we lack the ability to go after them' rather than 'we have no evidence to believe a systemic policy warranting further investigation was pursued.' While I'm sure some would take the dodge of 'well, the US pressured them to change their position,' this would itself be an argument that the ICC is corrupt and vulnerable to political influence from non-members, let alone what would be expected were the US to be a part of it.
Fortunately, much of the international order doesn't force people to be governed by laws they didn't sign, and instead gives them means to retract their signatures if their opinions change. Others may not like it when they renenge on agreements, but that is a sovereign right (and consequence).
There's two different dynamics to this paragraph that prompt two different response.
Part one, on the first two sentences, is who else are the Americans- or anyone else- supposed to answer to if not their own governments, and their governments to their own constituents?
The international system is, above all, anarchic. There is no higher authority to appeal to, and no authority in a democratic system more legitimate than the electorate and its representatives through their enshrined legal standard either. This is not some Americanism either- this is the same deal with why the UK Parliament is Sovereign, why EU legal Supremacy is routinely checked by German or other national Supreme Courts ruling something is against the National Constitution, and countless other variations and permutations. International law's legitimacy does not derive from being international law, it derives from the nations that back it, and they in turn derive their legitimacy from whatever mertis their popular support.
A decision not to join the ICC isn't a matter of power, it's a matter of sovereign deference. There are many countries- weak, stronger, moderate- that do not. If you want to get down to it, only about half of the world's population is in a country that abides by the ICC, which is to say that about half of the world's population doesn't abide by the IPC.
The second is a challenge to the assumption that the ICC is part of the American international system, as opposed to an attempt to co-opt it and develop of a coercive tool of diplomacy independent of the Americans.
There's a reason that the ICC is viewed in much of the world as more of a European than American project, and that's long been both a part of its attraction and its weakness. The US wasn't the champion of the ICC as an international system, the Europeans were, and expanding it was a matter of policy for the last two decades. One of the reasons the map shows most of Africa, for example, was that the Europeans made it a notable part of the Cotonou Agreement, which is to say a condition for systemic aid flow. The ICC is primarily funded by the Europeans, the location primacy is obvious, and there's long been a tension as to whether it functions as a tool for post-colonial influence in Africa by its historical focus on Africa. While there are structural arguments as to why it's perfectly appropriate for the ICC to spend most of it's time prosecuting poorer states and not the rich and powerful ones, this is what the ICC is without the US bankroll or direction, not because of it.
There's plenty to be said about about the ICC's place in the international order- and an argument to be made that the mid-2000s tensions between the ICC and the US/UK was the effects of an institutionalist power play between the Franco-German block of the EU trying to punish the UK for breaking ranks and joining the US war in Iraq while trying to secure geopolitical leverage of the US- but the key point is this.
If someone told you the ICC was a key part of the American international order, it wasn't the Americans.
They do extend you the same courtesy as everyone else. You are bound by the same international laws as you agreed to or maintain alignment with.
If you wish to be the bound by the same international laws as the United States, and no more, you have to agree to the same international laws as the United States has signed, and no more.
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