It has been nearly a year since October 7th at the time of writing this article. For months, we have seen countless events of horrific violence against the Palestinian people. This genocide has drawn international condemnation from institutions such as the UN, and yet the conflict continues to escalate. How is it that legal observers can condemn these actions, but consequences for Israel have yet to come? Why do we have international laws if they do not apply to everyone equally?
In May of 2024, the lead prosecutor of the International Criminal Court (ICC) officially filed for the arrest warrants of Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant. The accusations of war crimes and crimes against humanity do not come as a surprise, as more than half of Gaza has been destroyed, journalists and medical personnel have been killed, and white phosphorus has been used. The ICC has also called for warrants against Hamas leader Yahya Sinwar and two others. Despite this, President Biden has denounced the ICC’s efforts and continually denies the genocide occurring. In a speech at a White House reception, Biden said, “Israel wants to do all it can to ensure civil protection…what’s happening is not genocide.”
Biden is not alone in this rhetoric. House Speaker Mike Johnson, in response to the ICC, stated, “The U.S. firmly stands with Israel and refuses to allow international bureaucrats to baselessly issue arrest warrants to Israeli leadership for false crimes.” The New York Times independently published similar rhetoric in an opinion by James Kirchick, who wrote, “One of the greatest mass delusions of the 21st century is the belief that Israel is committing a genocide against Palestinians. This grotesque moral inversion—in which a genocidal terrorist organization that instigated a war with Israel by committing the largest massacre of Jews since the Holocaust.” I agree with this statement, and I believe that there is a grotesque moral inversion happening. It is grotesque to call Israel’s genocidal actions false crimes. It is grotesque for Nikki Haley to write “finish them” on the weapons that will be fired at civilians in Gaza. Republicans and Democrats seem to be united in their genocide denial.
The reality is that if the U.S. does not hold Israel accountable, there will be no consequences for Israel. The U.S. has historically disregarded its own war crimes, and is capable of doing the same for its allies. The ICC, established in 2002, is supposed—and has tried—to serve as the first permanent international court that is capable of prosecuting individuals for crimes against humanity, war crimes, and genocide. It is unsurprising that the U.S. opposed the establishment of the ICC by passing the American Service Members Protection Act of 2002, or more commonly the Hague Invasion Act. This legislation authorizes the use of military force to free any U.S. personnel detained by the ICC; the Biden administration’s rhetoric regarding the ICC’s decision on the genocide reflects a similar stance.
The U.S. is no stranger to rejecting international legal norms. In Vietnam, the U.S. committed horrific war crimes against the Vietnamese such as the My Lai Massacre or Operation Speedy Express. These vicious acts are clearly in violation of established international law, yet they have gone completely unpunished; this impunity extends to more recent military actions. Civilian casualties and war crimes have similarly marked the wars in Afghanistan and Iraq, and the use of drone strikes has resulted in scores of civilian deaths—with no accountability.
Said lack of accountability would perhaps not be as apparent if the ICC succeeded in prosecuting any and all war crimes. Instead, international law has been very selectively applied. The ICC has predominantly focused on African leaders and other Western adversaries. But while these prosecutions remain undeniably important, the glaring absence of Western leaders and their allies raises questions about the partiality of the court. In this sense, the relationship between Western hegemonic power and international law is clearly demonstrated, as well as the political realities that influence the development of international law and its interactions on a global scale.
The selective application of international law also makes it seem that the creation of these institutions was more for the purpose of exercising Western hegemonic power rather than establishing actual impartial legal organizations. Despite being an international court, the ICC does not have its own enforcement mechanisms. Instead, it relies solely on member states for procedures such as investigations and arrests, making it so that nations like the U.S. and its allies can simply refuse to cooperate. Further, the Rome Statute, which established the ICC, contains provisions that limit its reach. For example, Article 98 prevents the ICC from requesting the surrender of a person from a state if it would require that state to act inconsistently with its international obligations.
Another reason international courts fail to hold the United States and its allies accountable is the political influence these nations wield. This power has been previously used to shield nations from accountability, as was evident when the U.S. attempted to block any attempts by the ICC to investigate U.S. actions in Afghanistan by imposing sanctions on ICC officials and revoking the chief prosecutor’s visa. Actions such as these reflect the broader ability of powerful nations to apply diplomatic and economic pressure, making it difficult for international bodies to pursue investigations that could implicate them or their allies.
This manipulation of international politics and law brings us back to the original question: will Israel and its leaders be brought to justice for their war crimes? The current answer appears to be no, at least not through the ICC. The U.S. has shown through its support of Israel that they care about maintaining their political interests more than adhering to international law. The selective enforcement that results from this reality undermines the principles of justice and equality that institutions like the UN and ICC were supposedly founded upon.
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This article was edited by Ainsley Coates.
