By Arzoo Osanloo
On late May 20, 2024, the chief prosecutor of the International Criminal Court (ICC), Karim Khan, declared his intention to apply for arrest warrants for specified leaders of Israel and Hamas. In his brief statement announcing the charges, Khan, a British lawyer selected in 2021 by the United Nations Security Council and elected by the member states of the ICC, detailed violations of international humanitarian law and international criminal law. Prosecutor Khan ended his announcement by underscoring the need to apply the law equally to all. In order to safeguard the idea that the lives of all human beings have equal value, his office would pursue cases against the specified Israeli and Hamas leaders, as co-perpetrators and superiors in violations of crimes against humanity and war crimes. In alleging violations of both crimes against humanity and war crimes, Khan covered the breadth of the current conflagration but also situated it within a widespread and systematic manner inclusive of the long-established siege of Gaza, if not the wider occupation.
The prosecutor’s request for warrants provides clarity for the crimes alleged and repeatedly emphasizes the significance of upholding the rule of law to his decision. The ICC had never before requested warrants for sitting heads of states of western countries or their allies. This is one of the important outcomes of the ICC prosecutor’s decision. Another is the reaction of western leaders.
To consider the implications of these charges, rife with references to the significance of the rule of law, I begin by reflecting on what the rule of law, this phrase that so many scholars, journalists, and politicians have discussed and debated of late, means. Legalistic definitions of the rule of law describe it as the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Definitions of rule of law often include accountability to the law, equality before the law, fair application of law, substantive and procedural transparency, just law, and accessible and impartial justice.
The rule of law can be distinguished from rule by law. The difference being that for the former, all human beings are under the purview of law, while rule by law, suggests that some reside above or outside of the law’s rule. In the latter case, a ruler who is not subject to law may apply the law to others erratically or haphazardly and, in so doing, the administration of justice becomes more akin to an act of sovereign mercy than the rule of law. The administration of justice through the rule of law, then, is an important element of any egalitarian community regardless of scale.
As a law student in the early 1990s, I enrolled in a program on international law in Brussels, Belgium, the de facto capital of Europe. One of my courses, International Criminal Law, was distinct from the others in that it had no casebook. On the first day, the instructor handed out copies of articles about the idea of an international criminal justice system. They covered the post-World War II international legal regime and the attempts to establish an international criminal justice system based on the rule of law. Our studies included the Geneva Conventions, International Military Tribunals, including Nuremberg, the United Nations Charter (UNC), and the Genocide Convention. The Rome Statute, the treaty that created the ICC was, at that time, being drafted.
In the aftermath of the second world war, these international agreements were intended to end war and begin a new global order in which a post-colonial world of nation-states would submit their disputes to international forums, such as the International Court of Justice (ICJ), for resolution prior to the outbreak of mass violence. One element of that course which all the students left with was the post-WWII motto: never again.
Sitting in that course, the professor advanced the idea that criminal law, which is adjudicated in local jurisdictions to punish offenders of domestic penal codes, is more difficult to universalize and prosecute at the international level, not only due to state sovereignty, but also because what we think of as crime comes from distinctly domestic settings. The post-WWII attempt to find broad agreement for an international jurisprudence of crime emerged with the express aim of preventing future wars, but, importantly, also atrocities that do not involve cross-border aggression. This was of course because two key causes of international inaction with respect to the Holocaust were, first, at the onset, no cross-border aggression had occurred and second, national laws had not been violated.
Thus, international criminal laws provide guidance in the aftermath of the second world war, based on that experience politically, culturally, and geographically, to end impunity for the most serious crimes, defined now as war crimes, crimes against humanity, and genocide. While laws guiding armed conflict have been around for hundreds, perhaps even thousands, of years, the two latter crimes are newer and gained their meaning in the aftermath of World War II and can occur outside of a hot war.
We might consider this search for a comprehensive body of international criminal law as culminating in the ICC with the International Court of Justice (ICJ) as its adjunct. The ICJ was established by the UNC to help nation-states resolve their disputes. Although member states are not required to submit their disputes to the court, it may nonetheless provide advisory opinions. However, should states accept the ICJ’s jurisdiction to resolve a dispute, then its decision would be binding. The ICC, on the other hand, is a more recent venue that came about after the ratification of the Rome Statue (1998). This court began its work in 2002 with the express duty of ending impunity for the most serious crimes committed by senior leaders. The crimes included in the ICC’s jurisdiction are limited to genocide, crimes against humanity, war crimes, and the crime of aggression. Together, these two international courts adjudicate laws, which, while not always enforceable, suggest the beginnings of a jurisprudence of international criminal law, with the express aim of ending impunity by instituting command responsibility for the most serious crimes intended to apply to most states and peoples all over the world.
But international criminal law is just one component of the international legal regime that emerged from the post-WWII aim to advance the rule of law in a supranational context. This legal regime is also based on a rules-based international order that grew out of powerful post-war security interests. That is to say, the rule of law and the rules-based order are not the same. The true focus of the security interests was the maintenance of the power structure that the victors of WWII established through the UNC. And despite the formal end of empires and the UN-assisted process of transitioning colonized and dominated peoples to independence, at least formally, one need not look beyond the great triumph of the Nuremberg Trials to ascertain that with the UNC, the post-WWII order was established quite self-consciously to maintain not only the rule of law, but also the rules-based legal order.
Prior to or instead of the rule of law, societies have operated under the rule by law, in which leaders stand above or outside of the law and administer their rules while they, themselves, are not subject to them. When leaders are not subject to law, they mete it out arbitrarily because they have no cause to think they will be subject to any authority. Rather than a horizontal system where all are equal before the law, this is a vertical system where most are subject to the sovereign’s arbitrary rule by law. With the arbitrary rule, then, the shift from right to might is clear and without right the rule of charity sets in. We are not able to exercise rights before rule of law, but rather are made to bow before those who are outside of law to seek their exercise of benevolence. In the current international order, then, the rule of law and rule by law operate in opposition with one another.
The US-constructed humanitarian pier built haphazardly to deliver aid to Gazans is one such example of this exercise of benevolence. And perhaps in a metaphorically keen moment, just days after the US decried the ICC ruling as it pertained to Israel’s leaders, the pier, slated to showcase US’s care for besieged Gazans, broke apart. The message to Palestinians, then, seems to be that in the rubble of Gaza and on the verge of starvation, they must wait, not for justice, for it was never intended for them, but rather for mercy in the form of US aid. The ICC prosecutor, however, seeks to balance that vulgar display of US charity by seeking arrest warrants and attempting to recover some semblance of the rule of law out of the rubble of Gaza.
Arzoo Osanloo is a legal anthropologist and professor in the Department of Law, Societies, and Justice at the University of Washington