Why the International Criminal Court’s Jurisdiction Doctrinally Attaches to Israeli and Russian Nationals

As the storm of ICC Chief Prosecutor Karim Khan’s request for arrest warrants loomed and landed on Israeli Prime Minister Netanyahu and his Defence Minister Yoav Gallant, ardent supporters of Israel within the U.S. and U.K. governments and beyond appear to have seized upon a jurisdictional objection. U.S. Secretary of State Antony Blinken is reported as saying that the “ICC has no jurisdiction over this matter.” The U.K. Foreign Secretary David Cameron is reported to have said the same thing.

The same objection was made by the Russian government against the warrants that the ICC issued for the arrest of President Putin and his commissioner for children’s rights, Maria Alekseyevna Lvova-Belova, for war crimes in Ukraine—notwithstanding that Russia, like Israel, is not a party to the Rome Statute. Even Brazil—whose President has railed relentlessly against Israel for committing what Brazil’s President sees as genocide in Gaza—is now reported as contending that Russian leaders should enjoy immunity at the ICC because Russia is not a party to the Rome Statute.

We shall call this the “treaty-based objection” to the ICC’s jurisdiction. It goes like this: international tribunals are established by agreements or treaties; it is a basic rule  of international law that treaties create rights and obligations for no other states than the parties to it; therefore, a treaty that establishes an international tribunal cannot affect a state that is not a party to it.

As many may know, the basis of the ICC’s jurisdiction over nationals of Israel (in relation to the Gaza war) and those of Russia (in relation to the war in Ukraine) are provisions of the Rome Statute that grant the court jurisdiction over international crimes committed on the territory of a member State (article 12(2)) or of a non-member State that has declared its recognition of the court’s jurisdiction (article 12(3))—notwithstanding that the alleged culprit is the national of a state not party to the Rome Statute. Although Israel and Russia are not parties to the Rome Statute, Palestine is a party to the Rome Statute, and Ukraine has declared its recognition of the jurisdiction of the court over Ukraine since 2014.

The present piece will concentrate on that normative question only: can the ICC exercise jurisdiction over the nationals of a non-member state? It will not engage—beyond noting it now—the political gymnastics that satisfied the U.S. government and the U.K. government to applaud the ICC arrest warrants against Mr. Putin and Ms Lvova-Belova, only to turn around and base themselves on claims of ICC’s lack of jurisdiction to denounce Mr. Khan’s application for arrest warrants against Mr. Netanyahu and Mr. Gallant.

A Flawed Objection

There is a basic flaw, though, in the treaty-based objection to the ICC jurisdiction as has been made. It ignores the nature of the mandate of international criminal tribunals as mechanisms for the effective preservation of the basic fabric of the international order—including self-preservation of the subscribing states—through the sanctions of international criminal law. From that perspective, the jurisdictional objection fails to appreciate the essential distinction between, say, an agreement on tariffs and trade and a treaty whose primary purpose is to repress and punish wars of aggression, genocide, crimes against humanity and war crimes, although there are secondary aspects of the Rome Statute that still give value to the traditional understandings of treaty law beyond the statute’s primary purpose. That primary purpose deals with peace and security of the community of nations—such as devastating world wars and smaller skirmishes that might unleash them. That consideration is an essential matter of the international public order. The right of preservation—of the international order and of the states that subscribe to the treaty of an international court—is a primordial element of general international law. It transcends the constraints of treaty law as such. General international law is, it must be stressed, the substratum on which treaty law stands. In other words, it is general international law that fostered and nurtured treaty law.

As the very first order of business in his legal classic, The Law of Treaties, Lord McNair accepted that a treaty denotes “a written agreement by which two or more States or international organizations create or intend to create a relation between themselves operating within the sphere of international law.” [Emphasis added.] He explained  that “[i]mportance attaches to the words ‘operating within the sphere of international law,’ that is, operating within the system, and against the background, of international law.”

So, treaty law does not overtake general law. It stays within it. It is thus obvious, in other words,  that the constraints of treaty law do not operate to destroy general international law in its substance and essence, by allowing states to plead principles of treaty law in order to enable them to engage with impunity in conduct that could undermine the international order and destroy the very idea of international law “within” which treaty law “operates.” Principles of treaty law will have nothing to stand on if there is no general international law to give them scope. Treaty law is not meant to be a poison pill for the international law that gives it scope. That doctrine is adequately reflected in article 2(6) of the UN Charter, which says, “The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles [i.e. the principles laid down in article 2 of the Charter] so far as may be necessary for the maintenance of international peace and security.” The doctrine is also sufficiently discernible in provisions of the Covenant of the League of Nations, notably in articles 10, 11 and 17. The same principle is seen at work in article 29(2) of the Universal Declaration of Human Rights, which, after recognizing human rights as fundamental values, still provides: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” (Emphasis added.)

The Rule of Clean Hands

There are additional considerations that nullify the treaty-based objection to the ICC jurisdiction. For one thing, a treaty that seeks to repress and punish violations of international criminal law engages the jus cogens dimensions that international criminal law characteristically entails. Those are peremptory norms of international law that override any other norm that collides with them—including any norm of treaty law (see article 53 of the Vienna Convention on the Law of Treaties). The overarching consequences of jus cogens norms include the absence of a claim by the culprit. One way to appreciate this is to consider the full implications of the principle of good faith often expressed in the rule of clean hands. Nemo ex suo delicto meliorem suam conditionem facit: meaning, no one may improve his conditions by his own fault. Culprits are not entitled to reap the benefits of their own violation of jus cogens norms by retaining what was acquired in the violation—say, new territory acquired through an aggressive war or an alteration of demographics resulting from maleficent displacement or acts of genocide committed against an opposing population that the culprits have an interest in depleting—as they escape accountability for the violations. The force of jus cogens surely nullifies any positive results that the culprits gained from the violation, but also arguably stands to nullify any complaint they may have against the imperatives of accountability that they provoked by engaging in the violation to begin with. It is the rule of clean hands. One cannot violate jus cogens norms and be heard to complain when accountability comes calling from quarters (s)he did not approve.

The Right of States to “Exact Punishment” for the Welfare of the Community

What is more, the treaty-based objection ultimately rests on claims of sovereignty. I shall return to the subject of sovereignty later in the essay. For now, we may consider the syllogistic movement of the argument. It is an exercise of sovereignty, the argument goes, for a state to decide to subscribe to a treaty. It is therefore a violation of the sovereignty of that state if parties to a treaty purport to perturb the non-party based on that treaty.

Regrettably, the argument of sovereignty is quite incomplete in its appreciation of the fuller acreage of international law in related ways. The objection does not account at all for certain instructive views of Hugo Grotius and Emer Vattel, the two most eminent authorities in classical international law.

Grotius laid down a necessary limitation of sovereignty through the right of kings or of those in the position of kings to “exact punishment”—especially through “just wars”—upon other sovereigns who not only violate the rights of the avenging sovereigns or their subjects but also for “brutal violation of the law of nature or law of nations” at large. As he put it:

We should understand also that kings and those who possess authority equal to theirs have a right to exact punishment not only for wrongs committed against themselves or their subjects, but for those that do not immediately touch them but are brutal violations of the law of nature or of nations, committed against anyone.

Grotius considered that this right derives from the original idea of “the liberty to preserve by punishment the welfare of human society” but which converts into a prerogative of sovereigns in the context of international relations.

Vattel criticized Grotius for rendering the right too expansively: in a way that conceivably “opens the door to all the passions of zealots and fanatics, and gives to ambitious men pretexts without number”. But Vattel’s criticism was only as regards Grotius’s extension “to every sovereign, a certain right to punish crimes in grievous violation of the laws of nature, even when those crimes do not affect his rights or safety.” (Emphasis added.) To be sure, Vattel was not against the basic idea of lex talionis—the right of sovereigns to exact punishment against other sovereigns for an initial offence. His only objection was to Grotius’s extended version of the right. Notably, for his part, Vattel posited in the main that “the right to punish belongs to men solely because of the right to provide for their safety; hence it only exists as against those who have injured them.” Indeed, according to Vattel, “since the State is a moral person against whom wrongs may be committed, it has the right to see to its own security by punishing those who attack it, that is to say, the State has the right to punish public crimes. From this source comes the right of the sword which belongs to a Nation or to its ruler. In using this right against another Nation it wages war; in using it against an individual it administers punitive justice.”

The Right of States to “Exact Punishment” on a Collective Basis

The limited range of Vattel’s reproach of Grotius’s extended conception of the right to exact punishment soon becomes evident—in Vattel’s own recognition of the duties of mutual assistance and mutual self-preservation among nations. “Since Nations are bound by the Law of Nature mutually to promote the society of the human race,” he wrote, “they owe one another all the duties which the safety and welfare of that society require.” (Emphasis added.) In his view, “The fact that man, by the very nature of his being, can not be sufficient unto himself, nor continue and develop his existence, nor live happily without the assistance of his fellow-men, makes it clear that it is man’s destiny to live in a society where the members give one another mutual aid, and therefore that all men are bound by the very nature of their being to work together for the mutual improvement of their condition in life.” The resulting corollary, according to Vattel, is that “one Nation owes, in its way, to another Nation the duties that one man owes to another …”. Consequently, “when the occasion arises, every Nation should give its aid to further the advancement of other Nations and save them from disaster and ruin, so far as it can do so without running too great a risk.” And one practical manifestation of this duty of mutual assistance, as Vattel laid it down in terms clearly relatable to our own times, is this: “when a neighboring State is attacked unjustly by a powerful enemy which threatens to crush it, if you can defend it without exposing yourself to great danger there is no question but that you should do so.”

Writing in 1921, Ellery Stowell similarly observed that the punitive exactions could also be carried out on a collective basis by an alliance formed for purposes of the collective duty or right of self-preservation of its members. We see this in our own era in the phenomenon of modern-day alliances, such as the North Atlantic Treaty Organisation.

The classical rules of international relations never really stood against the right of states to exact those countermeasures by way of summary execution or summary banishment of heads of state who fought and lost battles, especially those accused of gross privations in the course of war. “As for those monsters,” proclaimed Vattel in his day, “who, under the name of sovereigns, act as a scourge and plague of the human race, they are nothing more than wild beasts, of whom every man of courage may justly purge the earth. Hercules was universally, praised by the ancients for freeing the world of such monsters as Antæus, Busiris, and Diomedes.” Vattel might have been a little extreme in making the point in terms that some might find provocative, but his drift is well understood. It is that classical international law did not prohibit harsh punishment without a judicial process as the fate of national leaders who plagued humankind in the name of their own national sovereignty. Vattel was saying, in effect, that international law does not recognise inviolability for kings who wreak havoc on their neighbours or upon the international order. It permits other sovereigns to summarily execute such a sovereign. To the same essential effect, Cornelius Bynkershoek wrote as follows: “But certain precautions are essential to the proper handling of affairs of this kind. For what if after the manner of a robber [a foreign sovereign] should make an attack on the life, the property, or the chastity of someone, just as an enemy might run amuck in a captured city? He can certainly be arrested and perhaps put to death, although I should prefer that it be done by a mob rather than through duly constituted process of law. Even in an unlimited monarchy, under similar circumstances, the subjects of the prince have been accorded the right of rising against him, if he lays aside the character of prince and becomes a tyrant; and this right has been conceded by those who are not in general hostile to the cause of princes.”

A Question of International Responsibility

In the final analysis, “Statecraft,” wrote Vattel, “thus goes hand in hand with obligation and duty, for princes have an interest in checking the advance of an ambitious ruler who seeks to increase his power by subduing his neighbors.”

George Clemenceau (in 1919) and Robert H. Jackson (in 1945) expressed the same idea as the principle of responsibility, requiring accountability before an international tribunal whether or not the defendants belong to states that are parties to the constitutive treaty of the tribunal. For Clemenceau, “one law dominates all others: that of responsibility. Civilisation is the organisation of human responsibilities.” The calamitous World War I presented for Clemenceau a perfect opportunity to give effect to that law on the international stage. “Today,” he said, “we have a perfect opportunity to carry into international law the principle of responsibility which is at the basis of national law.” In the light of the war, he was no longer content with “the principle of responsibility” that “only meant responsibility in newspaper articles and books, which the great criminals of the world could afford to laugh at.” The principle needed to be given actionable value through an international criminal justice system that held those accused “great criminals” accountable for their conduct. Clemenceau’s legal experts, Dean Ferdinand Larnaude and Professor Albert Lapradelle had advised that “[l]e droit moderne ne connaît plus d’autorités irresponsables, même au sommet des hierarchies”: meaning, modern law no longer recognises irresponsible authorities, even at the apex of political power.

For his part, Jackson did “not accept the paradox that legal responsibility should be the least where power is the greatest.” He insisted on bringing to bear in the processes of international law “the principle of responsible government” which held that kings are still “under … the law.”

It is thus wholly inadequate for the leadership of a particular state to embark upon flagrant violations of international law, in the manner of wars of aggression, genocide, crimes against humanity and war crimes, directly trampling upon the rights of other states, human dignity and the welfare of the international community, and then seek to escape accountability by claiming non-membership to an international agreement or treaty that requires accountability for such violations.

Classical Limitations of Sovereignty of States

Returning briefly to the subject of sovereignty, it bears stressing that classical writers—including Robert Phillimore, Theodore Woolsey, T.J. Lawrence, William Edward Hall, Henry Wheaton, and Stowell—were generally united in the view that international law never recognized absolute sovereignty in any state to brutalize the world unrestrained, as a menace to the international order or to humanity. This limitation is generally expressed in the language of exceptions to the principle of non-intervention against the sovereignty of other nations. Perhaps, Hall put it best in the following words:

“[T]he existence of a right to oppose acts contrary to law, and to use force for the purpose when infractions are sufficiently serious, is a necessary condition of the existence of an efficient international law. It is incontestable that a grave infraction is committed when the independence of a state is improperly interfered with; and it is consequently evident that another state is at liberty to intervene in order to undo the effects of illegal intervention, and to restore the state subjected to it to freedom of action.”

The updated dispensation of our own era, when states are required to settle international disputes only by peaceful means—including adjudication such as at the ICC and the International Court of Justice—and not the use of force, should derive serviceable lessons from Hall’s observations of the range of possibilities in international law even in the earlier era of a greater freedom to use force. “And if the intervening state may make war,” he wrote, “à fortiori, it may gain the same result in a milder way.” This directly translates into an arrangement in which the Rome Statute stands to pursue through the “milder way” the same objective that NATO’s Atlantic Charter seeks to achieve through the use of defensive military force—i.e. the maintenance of international peace and security through the preservation of the member states’ right of self-preservation, even when the state at the receiving end of such joint action is not a party to the treaty contemplating the action.

It is thus a major improvement in civilized conduct—introduced in 1919 as an actionable idea (in the unrealized effort to prosecute the German kaiser) and actualized in 1945 (in the consummated processes of the Nuremberg trials)—for states to establish an international tribunal upon which they confer jurisdiction to conduct impartial and independent penal inquiry, rather than summarily “exact the punishment” which international law did not (at least) forbid the aggrieved states from exacting on their own—if they could—even without such an inquiry. Such more enlightened principle is evident in the views of Grotius and Vattel reviewed above, which are implicated in the principle of international responsibility that Clemenceau and Jackson relied upon for the prosecution of even heads of state before international tribunals—whether or not the defendant’s state of nationality is a party to the treaty. It was that doctrinal rationale that gave validity to the Nuremberg and the Tokyo tribunals, as we see in the entirely correct observations of Justice Jackson, in the very opening paragraph of his opening statement at the Nuremberg trial: “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

The foregoing review should demonstrate the limitations of the claim that it is against international law for an international criminal tribunal to exercise criminal jurisdiction over the leadership of a state whose conduct amounts to an acute disturbance of international peace or security, merely on the claim that the tribunal in question was established by a group of states pursuant to a treaty to which the impugned state is not a party.

Conclusion

The normative reality of the current world order entails a central need to preserve that order as an arrangement that must guarantee to the extent possible the protection or preservation of all nations and the humanity and the civilisation they harbour. There is no higher object for international law, let alone one that serves only the selfish interests of particular states at the expense of the international community.

It is against that normative reality that the treaty-based objection to the ICC’s jurisdiction must be assessed for validity. And that validity depends on whether the objection is ultimately a canker argument—that is to say, a necrotic thesis which, like cancer, occasions the eventual destruction of the very normative body that houses and nourishes it. The analysis conducted in this essay—resting on the writings of classical jurists, notably Grotius, Vattel, Bynkershoek and others—denies validity to the treaty-based objection to the ICC’s jurisdiction.

Perhaps the point might be alternatively put in the following terms. A treaty is, after all, an agreement. Hence, to ground an untouchability objection on a treaty, in order to enjoy impunity for conduct that seeks to destroy international peace and security is to insist that no one may be punished for transgressions against the community unless they agree to be punished. Most assuredly, Grotius, Vattel and others didn’t conceive of international law in that way. Their theory of self-preservation, which stresses the right of states (acting alone or in concert) to exact punishment against a state that wreaks violent havoc on its neighbour or on the international community negates the treaty-based objection to the ICC jurisdiction.

But, just to be clear, the negation of the treaty-based objection as thus explained doesn’t render the Rome Statute pointless as a treaty in other meaningful respects. Indeed, the Rome Statute still has great scope as a traditional treaty in aspects such as follows: the obligation to finance the Court through an assessed compulsory contribution based on a formula that takes into account the matrix of population and GDP; the obligation to lend assistance to the Court as it requests; the right of member states to nominate and vote for candidates into high offices at the Court, etc. These obligations and rights remain of the essence as a matter of treaty law. They do not affect states that are not party to the Rome Statute. But that doesn’t mean that states not party to the Rome Statute can escape the imperatives of accountability for their destructive behaviour that each member state of the Rome Statute is entitled in international law to punish alone or in concert with other states who are parties to the Rome Statute. On that analysis, the ICC is—as were the Nuremberg and Tokyo tribunals—the mechanism for the concerted right of self-preservation that classical writers articulated as a basic norm of international law.

International law is not a one-way street for those who only take. According to the teachings of eminent classical writers, international law allows no one to take all that they can from the international order and then turn around and destroy that very order, so that they can keep taking. Mechanisms like the ICC, the Nuremberg and Tokyo tribunals, are efforts intended to try and protect the world from the destructive behaviour of people who only seek their own selfish ends.