Once you get beyond trade and maritime borders, you will find that much of international law is, pace Clausewitz, the continuation of policy by other means. The International Criminal Court (ICC) was continuing policy by other means when it issued arrest warrants for Israeli prime minister Benjamin Netanyahu and former defence minister Yoav Gallant. The two stand accused of crimes against humanity and war crimes over Operation Swords of Iron, Jerusalem’s response to the Palestinian invasion of its territory and mass murder of its citizens on 7 October 2023. Israel has protested the Court’s actions, which were prompted by chief prosecutor Karim Ahmad Khan, as a one-sided interference in the military actions of a sovereign democracy which is not a member of the tribunal and does not recognise its jurisdiction. (The Court is relying on its jurisdiction over Palestine, which is not a sovereign state and lacks defined international borders.)
Trump evidently sees in the targeting of Israel a trial run for the ICC to target the United States
Now Israel’s stance has received the backing of the United States. In an executive order, Donald Trump has denounced ‘illegitimate and baseless actions targeting America and our close ally Israel’ and, as punishment, has frozen the US assets of key ICC personnel and their immediate families as well as restricting their ability to acquire a visa to enter the United States.
Washington, D.C. does not recognise the Court’s authority over the US or its citizens, appreciating early on that the body, set up in 2002, could one day be used by America’s enemies to judicialise the use of force in wars or counter-terror operations overseas, undermine the president’s commander-in-chief powers, and hinder American defence and national security policy. That’s why, the same year the ICC came into existence, Congress passed the American Service-Members’ Protection Act. To gauge how seriously they take these matters, note the legislation’s informal title: The Hague Invasion Act, so called because, should a single US service personnel, politician or any other ‘protected person’ be seized under the Court’s direction, the president would have the authority to invade the Netherlands to free them.
All well and good, but why would Israeli leaders be ‘protected persons’ under this Act? Because it was passed in 2002, at the outset of the global war on terror, and both the Bush administration and Congress grasped that, if the ICC couldn’t get at America directly, it could go after those allies with whom America has close cooperation in military and intelligence matters. The Act therefore extends ‘protected person’ status to political and military leaders of Nato members such as the United Kingdom and named ally states including Australia, Japan – and Israel. As such, these sanctions are a shot across the bow to the ICC: come for America’s friends, and we’ll come for you.
While the executive order has caused conniptions at the UN and across Europe, with Trump accused of undermining global conflict norms, the directive reaffirms the United States’ commitment ‘to accountability and to the peaceful cultivation of international order’. However, it insists that the Court ‘respect the decisions of the United States and other countries not to subject their personnel to the ICC’s jurisdiction, consistent with their respective sovereign prerogatives’. It is an open question whether the upholding of international order and norms, including against humanitarian outrages, is well served by policing the military decisions of democracies against conventions agreed before the advent of 21st century warfare, with its asymmetric and rapidly evolving terms of conflict. Gaza embodies the problem better than most theatres, with its combatant journalists, terror infrastructure underneath UN agency buildings, politicised and partisan NGOs, and the deliberate situating of combatants at medical facilities. None of this means Israel should exercise its military power without restraint. All states should deploy force within parameters set by their own laws, ethics and customs. In the case of Israel, all three place great value on humanitarian considerations.
American and European liberals aren’t the only dissenters from this executive order. There is a segment of Trump’s coalition – let’s call them paleonationalists – who strongly dislike America’s close ties with Israel. They object to military aid to the Jewish state, even though most of it ends up back in the US economy through Israeli defence procurement, and regard any alliance as contrary to a non-interventionist foreign policy. In some, this is nothing more than consistency of principle, applying their nationalist philosophy to Israel in the same way as they do other foreign nations. In others, it is a matter of specificity rather than consistency. They are not content with America First unless it also means Israel Last. Like the paleoconservatism of old, paleonationalism harbours a certain strain that pronounces ‘Israel’ to rhyme with ‘newish’.
This strain will disapprove of Trump’s executive order as a betrayal of America First, as though anyone should be surprised that a baby boomer New York Democrat would feel an affinity towards Israel. But the terms of his order make clear that there is more than philosemitic sentimentality at work. Trump recognises that the United States is in the same position as Israel, as a country which is not party to the Rome Statute, not a member of the Court, and has never recognised its jurisdiction. He describes the arrest warrants for Netanyahu and Gallant as setting ‘a dangerous precedent’ that ‘threatens to infringe upon the sovereignty of the United States’. Trump evidently sees in the targeting of Israel a trial run for the ICC to target the United States. In that sense, his directive might prove to be a far-sighted application of America First principles.
It is possible to be a liberal internationalist, concerned with the humanitarian dimension of conflict, and to welcome Donald Trump’s intervention. Some things are right even if the Orange Boogeyman does them, and this is one of them. If international humanitarian law is to survive in its current form, and that is by no means a given, it needs instruments that better reflect the nature of contemporary conflict, institutions which can apply them dispassionately, and the acquiescence of sovereign states to their jurisdiction. That might prove unachievable, but as Trump’s order shows, there are significant limits to what can be achieved under the current arrangements.
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