A “Democratic Exception” to ICC Jurisdiction

On 21 November 2024, the International Criminal Court issued arrest warrants for the Israeli Prime Minister and the former Minister of Defence, for alleged crimes against humanity and war crimes in the ongoing Israel-Gaza War. Equally contentious was the response of leading Western states – including Germany and France – who have questioned or openly rejected treaty obligations to enforce the warrants. This is a conspicuously fraught position for countries who previously welcomed 2023 ICC arrest warrants for Russian President Vladimir Putin in legally identical circumstances. A range of legal justifications may arise, but the fundamentally political distinction has raised the spectre of an inchoate “democratic exception” to ICC jurisdiction. Deeming states to be governed by the rule of law as a basis for exemption is not itself a legal position, yet has an intellectual history that has deeply shaped the ICC’s jurisdictional regime since its earliest days. The current controversy is thus the manifestation of political tensions embedded in the very design of the court, which now re-emerge as a tool for the global critics of Western states’ perceived privileges in the international legal order.

Contradictory responses to ICC arrest warrants

Article 86 of the Rome Statute of the ICC creates a “general obligation to cooperate” with the court’s investigation and prosecution of crimes, which under Article 89 extends to a duty to comply with a request for the arrest and surrender of a person found on the territory of a state party. Various international law arguments may be raised by states parties to resist these duties: that Benjamin Netanyahu enjoys the immunities of a head of government under international law; that Israel cannot be bound as a non-state party; and, that Palestine lacks the capacity of a state party. Each of these arguments has been persuasively rebutted in this forum by an eminent group of German jurists, who concluded that the “opposing view not only misrepresents the current state of international law, but it also contradicts the Nuremberg legacy, which must be upheld particularly by Germany”. An exclusively legal analysis, however, does not explain the divergent responses to the Russia and Israel cases.

France has declared it will not comply with any request to execute the Israel warrants since, invoking the language of Article 98, it “cannot be required to act inconsistently with its obligations under international law with respect to the immunities of States not party to the ICC”. The German jurists pre-empted this objection, reasoning that the inapplicability of relevant immunities before an international court ensures that a state party executing the warrants in question “does not act in contravention of its obligations under customary international law immunity rules”. More revealing is the accompaniment of the legal claim with reassurances that France and Israel are “two democracies committed to the rule of law”. This emerges as a basis for France’s otherwise contradictory response to the Putin arrest warrant, where it affirmed that, pursuant to “its long-standing commitment to combat impunity”, it would be “providing its full support to the ICC”. Obvious inconsistencies left France awkwardly describing its legal position as “the same” in both cases, while pledging to “apply international law in all its aspects” as it relates to Putin.

In May 2024 Germany cautioned that “difficult questions” arose when investigating “states governed by the rule of law”, while expressing an expectation that Israel’s democratic system would be taken into account by ICC judges considering the then pending warrants. The option of lodging a legal objection, based on immunities of a non-state party, was effectively foreclosed by Germany’s stated position that “the Russian leadership cannot invoke immunity” in the case against Putin. Following issuance of warrants in the Palestine situation, Germany’s spokesperson responded that the legal implications required further consideration but that, in the context of perceived historical responsibility for Israel, “I find it hard to imagine that we would make arrests on this basis”. Other German political leaders rejected the arrest warrants in part because Benjamin Netanyahu is “a democratically elected prime minister”. Austria made no such suggestion of ignoring ICC requests, yet asserted similarly that, by simultaneously issuing warrants for Israel – as ‘the only democracy in the Middle East’ – and leaders of Hamas, the ICC decision ‘undermines international law and is a disservice to the court’s credibility’.

These invocations of democracy pick up on reasoning that, until now, was primarily seen only in US statements. In March 2022, the US Senate endorsed an ICC investigation of Russian nationals despite longstanding US opposition to ICC jurisdiction over non-party states – including itself and Russia. The resolution sought to square the circle of differentiated jurisdiction by framing the ICC as “an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists”. Senator Lindsay Graham introduced the resolution by claiming that, although the “court doesn’t make sense when it comes to America or Israel”, it “makes perfect sense when it comes to places where there is no rule of law”. Prominent American jurists accordingly concluded that to proceed “would not constitute a double standard or be inconsistent with U.S. objections to the court’s claimed jurisdiction over U.S. personnel”. A Washington Post editorial has since condemned the Israel arrest warrants as illegitimate, for “putting the elected leaders of a democratic country with its own independent judiciary in the same category as dictators and authoritarians”. Such claims permeate US opposition to the ICC’s investigation of alleged crimes committed in connection with the 2021 war in Afghanistan, which notably includes allegations against US military and official personnel.

The politics of “complementarity”

The current controversy evidently goes beyond matters of mere legal interpretation to encompass substantive political disagreements about what kind of international legal order the ICC serves. Here it is instructive to revisit the intellectual history of the Rome Statute and the political ideas that informed it. Although the US ultimately declined to join the ICC, it was a leader in initiating and developing the Rome Statute, guided throughout by a sense that support for international criminal justice “has been a hallmark of United States policy dating back at least to the time of Nuremberg”. The achievement of establishing the post-War Nuremberg and Tokyo War crimes tribunals reinforced long held ideological convictions that the US constitutional system could serve as an exceptional model for the international rule of law. The converse was not true however, with the domestic rule of law assumed to ensure that the US would “never give cause to any legitimately motivated prosecutor to bring a case or to seek admission of a case against an American citizen in an international court”. The correlative of this exceptionalist view was that, in the event of any “fundamental conflicts between democracy and international law”, American constitutional government should prevail as the more legitimate foundation for its own accountability – with the ICC intended as a forum for other states.

Ideas of American exceptionalism became embedded in the novel jurisdictional regime of the ICC, in which the principle of “complementarity” rather than primacy governs its relations with national courts. Article 17(1)(a) reserves primary prosecutorial obligations to states, with ICC jurisdiction enlivened only when a state is deemed “unwilling or unable genuinely to carry out the investigation or prosecution”. Other states largely accepted complementarity, yet with many recognising it as a compromise position to accommodate politics. Formally the complementarity regime applies equally to all states, but on the assumption that the domestic processes of the US and other liberal democracies would in practice exempt them from ICC jurisdiction. The US expressed a narrow concept of complementarity whereby “bona fide national investigations and prosecutions will always be preferable”, such that the ICC should only exceptionally declare that “a functioning national system is not bona fide”. Such assumptions intensified amongst the court’s critics, with John Bolton, then National Security Adviser to Donald Trump, asserting: “If the ICC prosecutor were to take the complementarity principle seriously, the court would never pursue an investigation against American citizens, because we know that the US judicial system is more vigorous, more fair, and more effective than the ICC”. In short, since the inception of the court, leading voices have operated according to the assumption that a democratic exception was enshrined in the complementarity regime.

A fracturing international legal order

The issuance of arrest warrants against the democratically elected leaders of Israel has reawakened the dormant assumptions of those states who negotiated the Rome Statute. The controversy is emerging as a significant event in a global “jurisprudential debate” about the political values and power structures of international legal order. At the heart of this debate is the claim by primarily Western states that their dominance in the international order is justified by their guardianship of the “rules based order” (RBO). The RBO notion functions as a political frame within which international law is presented as more legitimate to the extent that it incorporates principles such as democracy and human rights – naturally exemplified by those states invoking it. China and Russia (neither of whom are ICC members) have criticised the RBO framing, with China declaring that the RBO “is an attempt to impose one’s own will and standards on others, and to replace the commonly accepted international laws and norms with the house rules of a few countries.”

The credibility of this narrative should be fundamentally undercut by Russia’s ongoing breaches of international law in the Russo-Ukrainian War, combined with China’s acquiescence to Russia’s aggression and its own excessive maritime claims in the South China Seas. Yet the narrative will be sustained by the invocation of democratic exceptions by leading Western states, with Senator Graham declaring frankly of the Israeli arrest warrants: “The Rome Statute doesn’t apply to Israel, the United States, France, Germany, or Great Britain because it wasn’t conceived to come after us”. It should thus be unsurprising that states of the Global South are increasingly drawn to the China-Russia narrative about the RBO, including especially those African states who have long accused the ICC of selective prosecutions. The RBO framing cannot be sustained unless its advocates demonstrate that it is complimentary and not antagonistic to ideals of the rule of law – including especially that it embodies some concept of equality before the law.

Preserving the political legitimacy of legal authority

A generous reading of the Rome Statute might indirectly incorporate democracy criteria via its complementarity regime. However, by joining the Rome Statute, member states have consented to forgo the discretion of declaring the rule of law standing of another state, in deference to the ICC’s own legal powers for making determinations to that effect. Former ICJ President Rosalyn Higgins once warned of the “very fine line between insisting that decisions be taken in accordance with the policy objectives of a liberal, democratic world community and asserting that any action taken by a liberal democracy against a totalitarian nation is lawful”. Following Putin’s recent visit to ICC member state Mongolia, the European Union charged that Mongolia “did not comply with its obligations under the statute to execute the arrest warrant”. If the EU states who have long positioned themselves as leaders of the ICC project invoke democratic exceptions for themselves and their friends, their condemnations of others will carry a merely political rather than legal force.

At the time of the Rome Statute negotiations, US Ambassador-at-Large for War Crimes David Scheffer spelled out the logical implication of a genuine faith that American exceptionalism protected against ICC jurisdiction: “Either we are the United States of America committed to the rule of law, or we have transformed into another kind of nation.” Ideological assumptions that democracy protects against atrocity crimes, and ensures accountability in the alternative, must yield when Israel has shown itself unwilling or unable to investigate and prosecute alleged international crimes. After a long year of war in which even the former Israeli defence minister acknowledges that “war crimes are being committed” and the number of Palestinians killed reliably exceeds 40,000 – the majority of them women and children – it is simply inadequate to reassure that Israel is “a democratic country that is committed to human rights” such that the ICC is properly reserved for “conflicts elsewhere where atrocities are being committed with impunity and the victims have no other recourse”. In an era when the onus is squarely on Western countries to demonstrate their commitment to an inclusive conception of international law, they must demonstrate a vision that is indeed both international and law based.