International Law Strikes Back at The 'Rules-Based International Order'

Edited by Sam Thielman

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BENJAMIN NETANYAHU AND Yoav Gallant, Israel's premier and its former defense minister, do not ever have to be placed in the dock at The Hague for the warrants issued by the International Criminal Court yesterday to make history. 

However unenforceable the warrants may prove to be, and however insufficient they are on their own to stop what may be the world's most documented genocide, the ICC has decisively separated international law from the U.S.' Rules-Based International Order, which claims the same mantle of political and legal legitimacy. 

Since Israel's U.S.-supported genocide began, I have been writing about how it reveals the sharp difference between international law and the Rules-Based International Order. I won't belabor the point here, so click through to those pieces of mine in The Nation and The New York Times should you want elaboration. It's sufficient to observe here that international law requires universal application, while the Rules-Based International Order preserves American and allied Exceptionalism, making war crimes less about barred conduct than about who gets to commit it. 

As I've seen many people observe over the past 24 hours, the ICC has previously concerned itself with depravations committed by those who do not bandwagon with the United States. Qaddafi and Putin, both U.S. adversaries, are the paradigmatic examples of those the U.S. accepts as legitimately targetable by the ICC. For its 20-plus year existence—a period roughly spanned by Israel's entrenchment as an apartheid state after the Second Intifada through to the post-October 7 decimation of Gaza—the ICC has generally acquiesced to the framework expected by the regnant superpower. The one exception I can think of is William Ruto, though the ICC prosecution for his role in Kenya's 2007 post-election onslaught of violent retribution, murder, torture and population transfer was abandoned. Ruto is today the U.S.-backed president of Kenya, which is a key U.S. counterterrorism partner in East Africa.

This is not really about hypocrisy. It's about exceptionalism, a power-reliant assertion of who the rules apply to and who they don't. The ICC's disregard for the Rules-Based International Order's restraints of expected applicability is a crisis for American Exceptionalism on the world stage.

Again, Netanyahu and Gallant may never see the inside of a courtroom over what they have done in Gaza. (Netanyahu is more likely to see the inside of an Israeli courtroom thanks to his corruption case.) But everywhere they might travel, particularly in Europe and in the United States, they will be greeted by protesters demanding their leaders follow the ICC requirements of member-states (the U.S. quite obviously isn't one) to arrest them. As importantly, others who enjoy U.S. protection for the commission of atrocities now have reason to doubt that the Rules-Based International Order will ultimately save them. This is international law struggling to be born. 

And it will be a struggle. This is an occasion when I think the right wing in America accurately captures the stakes. Liberals like the Biden administration, caught in their contradictions and committed to saving the Rules-Based International Order as a project, are left sputtering something about moral equivalence.  

As my Zeteo colleague Prem Thakker reported yesterday, Sen. Lindsey Graham (R-SC) reacted to the ICC warrants by saying, "We cannot let the world believe for a moment that this is a legitimate exercise of jurisdiction by the Court against Israel because to do so means we could be next." Graham is wrong on the merits but correct in his analysis, even if U.S. accountability before the ICC remains a very long way off. This truly is a test of whether the United States could be next. The difference between my perspective and Graham's lies in whether you think the U.S. is the sort of entity that ought to be subjected to international law, particularly in extremis cases like war crimes, like any other state.

In other words, what takes priority: American Exceptionalism as instantiated by the Rules-Based International Order; or international law? For the first time in its history, the ICC has forced the issue. 

WE CAN EXPECT THE SECOND TRUMP ADMINISTRATION to forcefully reject the ICC—much as the first one sanctioned ICC prosecutors and even their relatives for merely investigating U.S. war crimes in Afghanistan like the U.S.-backed Qala Jangi massacre. (We call that a clue.) Earlier this year, Rep. Elise Stefanik (R-NY) introduced an ICC sanctions bill, and she's about to be the U.S. ambassador to the United Nations. Whatever they do, however, can only reinforce the point that war crimes only matter to the U.S. when its adversaries commit them. 

Such assertions are a measure of American imperial decline. Whatever else the ICC has done, it has rejected the viability of turning a blind eye to U.S.-backed war crimes. And whatever the material realities of imperial decline—and I tend to think these realities usually reveal themselves in hindsight—entities like the ICC that were born in an era of U.S. hegemony would not take such a step if they considered the Rules-Based International Order unchallengeable. Decisions like the Israel warrants are downstream of decline. And so those who rally under the banner of the Rules-Based International Order must either fight to regain such dominance or accept the loss of this immaterial territory. 

Liberals like Biden and his administration have responded with opprobrium over the "moral equivalence" shown by the ICC issuing warrants for Netanyahu and Gallant alongside possibly-dead senior Hamas military official Mohammed Deif. But that's a category error—the ICC isn't showing a moral equivalence. It is showing consistency, based on reasonable grounds to believe war crimes attributable to the individuals subject to warrants exist. Indeed, the ICC issued the warrant for Deif to show that it considers Hamas' October 7 assault a war crime, much as South Africa and the International Court of Justice did in forcing the adjudication of the genocide. Law either applies universally or it is mere prerogative – which is to say, the Rules-Based International Order. I would also note that the ICC's attempts at showing consistency do not and cannot satisfy those, spanning Biden to Graham, who seek to enforce the exceptionalism of the Rules-Based International Order. 

Hen Mazzig objected that the ICC decision was akin to the ICC treating bin Laden, Bush and Obama as "equally responsible for 9/11." First, no, the ICC warrants don't treat Netanyahu and Gallant as responsible for October 7, they're treating Netanyahu and Gallant as responsible for what they did in response to October 7. Second, don't threaten me with a good time! We should hold U.S. leaders accountable, as I have striven to do in my journalism on every post-9/11 U.S. administration I have covered in my 20-plus years in this business. If there is to be accountability, it will be found in institutions like the ICC.  

Finally, do not make the mistake of thinking that whatever weakens the Rules-Based International Order strengthens international law. You know who also isn't a signatory to the Rome Statute? China. As I wrote in my Times op-ed: "Rising powers will be happy to cite U.S. precedent as they assert their own exceptions to international law." That makes it all the more important that the many around the world who wish to see the prevention of genocides and other mass atrocities work to ensure a lack of such exceptions. The replacement of the U.S. Rules-Based International Order with a multitude of such Orders spread across reasserted spheres of influence will not aid those necessary goals. 

I KNOW I SAID WE WEREN'T GOING TO PUBLISH A THIRD EDITION THIS WEEK, but FOREVER WARS just had to cover the ICC warrants. We would not be keeping faith with you, the reader, if we didn't. This edition would have been out yesterday but I had a particularly harrowing interview I needed to conduct for THE TORTURE AND DELIVERANCE OF MAJID KHAN that left me wanting to curl up into a ball. And now I have to get back to that. Next week is the Thanksgiving holiday in the United States, so we'll return afterwards—unless something similarly seismic occurs, but I'm really hoping we can wait until December. 

Next week: IRON MAN #2 is out in stores! Be sure to pick it up—I really want our next edition to be devoted to some writer commentary on the issue. If you've seen our promo art with Iron Man wielding a giant anime sword, issue #2 is about the origins of the sword. I can't wait for you to see how the sword is drawn, so to speak.  

WALLER VS. WILDSTORM, the superhero spy thriller I co-wrote with my friend Evan Narcisse and which the masterful Jesús Merino illustrated, is available for purchase in a hardcover edition! If you don't have single issues of WVW and you want a four-issue set signed by me, they're going fast at Bulletproof Comics! 

No one is prouder of WVW than her older sibling, REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP, which is available now in hardcover, softcover, audiobook and Kindle edition. And on the way is a new addition to the family: THE TORTURE AND DELIVERANCE OF MAJID KHAN.