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When the International Criminal Court issued an arrest warrant for Russian President Vladimir Putin for alleged war crimes in Ukraine, US President Joe Biden called it “justified.” When the court on Thursday issued an order For Israeli Prime Minister Benjamin Netanyahu, a first for a Western-backed leader, the White House said it “fundamentally rejects” the ICC decision. The contrasting reactions to the two ads were echoed in Donald Trump’s camp.
The United States has never joined the ICC, largely out of fear that it would persecute American soldiers. But what will seem to many – especially outside Western democracies – to be double standards on Washington’s part will further undermine the international legal order that the United States helped build and of which it has been a major beneficiary. That unraveling risks worsening under an incoming Trump administration committed to an “America First” approach to the world.
The development of international humanitarian law was a pillar of the post-war normative framework. The creation in the 1990s of tribunals for the former Yugoslavia and Rwanda, and later the ICC, as mechanisms to prosecute those accused of war crimes, helped complete that framework, even if Russia, China and India , plus the United States and Israel, remained outside the ICC.
Requests filed by ICC prosecutors in May to obtain arrest warrants against Israeli leadersas well as three Hamas leaders, were a sign that the rules of war applied to elected leaders and their armies, not just autocrats or terrorist groups. They had the potential to burnish the reputation of a court long criticized for primarily targeting African despots.
The issuance of arrest warrants by the ICC this week for Netanyahu and his former defense minister, Yoav Gallant, and Hamas leader Mohammed Deif, have intensified accusations that the court is drawing a moral equivalence between the two sides. Among Israelis still suffering from the trauma of the horrific Hamas attacks of October 7, 2023, it sparked a rare unity in the politically polarized nation. Netanyahu’s opponents and allies alike condemned him as an attack on Israel’s right to defend itself.
In fact, the court accepts Israel’s right to self-defense, but not the way its government has carried out the war against Hamas. Like the devastating Israeli bombing of Gaza, its focus is on the alleged collective punishment of the strip’s besieged civilian population and restrictions on life-saving aid in violation of international law.
The ICC orders are very problematic for the Western alliance. They could drive a wedge between the United States, which has condemned them, and some European countries that say the court should be respected. Trump’s allies have suggested they will reimpose sanctions on the ICC; his first administration did so in connection with an investigation into alleged war crimes in Afghanistan.
Bodies like the ICC, which depend on international cooperation, were always ready to fight in an era of a belligerent Russia and an assertive China. But many developing world leaders will see Western divisions over this week’s court orders as a sign of hypocrisy and a willingness to choose how to apply international law. Many in the global south already considered the United States complicit in unwavering support for Netanyahu’s far-right government.
This will be all the more damaging as it follows a broader erosion of the courts and the domestic rule of law by populist leaders in a number of Western democracies, which has now spread to the United States. A convicted felon who tried to use the law to overturn the result of the last presidential election has been re-elected to the White House. Trump’s team views international institutions and treaties as obstacles to America’s freedom of action. But a global order based once again on money and power does not serve the interests of the United States or its allies in the long term.