Ann Arbor (Informed Comment) – 2024 was a pivotal year for international humanitarian law. On the one hand, the International Court of Justice and the International Criminal Court functioned as they were intended to by the idealists who founded them. On the other, the International Humanitarian Law that underpins those institutions was profoundly, perhaps fatally undermined by the United States in the service of Israeli impunity.
The humanitarian workers of the International Committee of the Red Cross witnessed tremendous atrocities during World War II, which violated the Hague Regulations of the early twentieth century as well as the 1929 Geneva Convention on the treatment of prisoners of war. The ICRC proved a force in lobbying the post-war political establishment, led by the United States, to tighten and make more explicit the international law governing warfare.
As the full horror of the actions of Nazi Germany, Fascist Italy and Imperial Japan became clear, many level-headed politicians and diplomats in Europe and the United States came to agree with the ICRC officials. Of course, the post-war steps taken to punish war crimes and legislate against their repetition excused the U.S. and its allies from any prosecution. Otherwise dropping atomic bombs on hundreds of thousands of innocent civilians in Hiroshima and Nagasaka would have have resulted in war crimes trials of Truman administration figures.
Out of this push back against the total war pursued in 1939-1945 came the United Nations and its Charter, the Genocide Convention, and the Fourth Geneva Convention of 1939. The International Court of Justice was formed to settle disputes among United Nations member states peacefully.
Another push for the “New Humanitarianism” came out of Jimmy Carter’s presidency and then the fall of the Soviet Union in 1991. In 1995-1998 dozens of countries crafted the Rome Statute as a charter for a new International Criminal Court, intended to allow for the trial of politicians who commit war crimes. It came into effect in 2002 and now has 124 signatories, out of the 193 countries in the United Nations.
The thrust of these developments is that humanitarian law and the law of war merged into International Humanitarian Law (IHL) and it has been given some teeth, though not very sharp ones. For the most part, it continued to be applied only to enemies of the United States and Western Europe, the wealthiest and most powerful victors of the Second World War.
One difficulty with the entire edifice, however, is that the post-war legislation put so much emphasis on “intent” in finding actors guilty of war crimes or genocide that the existing laws are difficult or impossible to deploy for the purpose of preventing genocide. In addition, so much latitude is given to war-fighting and its requirements that it is difficult to protect civilians.
The political elites of the United States have been ambivalent about these developments. Washington likes IHL when it can serve as a cudgel against its foes. Joe Biden and Antony Blinken jumped up and down for joy on March 17, 2023, when the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin for his war crimes in Ukraine. Note that neither Ukraine nor Russia are signatories to the Rome Statute, and so the ICC has no jurisdiction over Russian atrocities, either in Russia or Ukraine. It is true that Ukraine gave the ICC permission to make judgments about Russian IHL violations on Ukrainian soil. Still, the jurisdiction of the ICC here could be disputed. Biden and Blinken made no reference to this jurisdictional difficulty.
Washington, however, has dismissed and even sought to punish the primary institutions of International Humanitarian Law when they come after the United States or its partners, such as Israel. Secretary of State Mike Pompeo put sanctions on the judges of the ICC for even thinking about looking into the behavior of US troops in Afghanistan.
Congress has also behaved erratically. The Leahy Act forbade the US to provide weaponry to states violating humanitarian law. But Congress has also considered imposing sanctions against the ICC.
In 2024, the International Court of Justice agreed to consider the case brought by South Africa against Israel for the commission of genocide in Gaza. South Africa then sought the equivalent of a preliminary injunction (“provisional measures”), seeking a ruling from the court forbidding the commission of acts by Israel constitutive of genocide while the ICJ considered the case (which is still ongoing). On January 26, 2024, the court ordered Israel to “take all measures within its power to prevent the commission of acts of genocide,” finding it “plausible” that Israel was committing such acts.
The court also ordered Israel to halt its invasion of Rafah in May 2024, saying Israel must “immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.” Rafah was the last place in Gaza where the Israelis had not destroyed most of the infrastructure, and it was feared that if its population was driven elsewhere and civilian objects were reduced to rubble, the effects would be truly genocidal. These fears were later borne out when Israel’s government thumbed its nose at the court. It was this Israeli lawlessness that led Ireland, Norway and Spain to recognize the State of Palestine.
“International Criminal Court Undermined,” Digital, Midjoourney / IbisPaint, 2024
Then this summer the International Court of Justice ruled that the Israeli occupation of the Palestinian Territories (Gaza and the Palestinian West Bank) is in itself illegal.
On November 22, 2024, the International Court of Justice issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Minister of Defense Yoav Gallant.
As a result, Netanyahu cannot attend the commemoration in January in Poland of the liberation of the Auschwitz death camp, for fear of being arrested by Polish authorities.
Thus far, the institutions of International Humanitarian Law are working as they should be.
The other development of the past year is more troubling. The United States, the most powerful country in the world, has repeatedly undermined these institutions. President Joe Biden flatly denied that Israel had committed genocide in Gaza, as did Secretary of State Antony Blinken. The Biden administration rejected the jurisdiction of the International Criminal Court, even though Palestine became a UN non-state observer and acceded to the Rome Statute in 2015, and brought charges against Israel. The legal foundation for ICC jurisdiction in Palestine, including Gaza, is vastly more solid than its jurisdiction in Ukraine.
Yet the US cheered the ICC warrant for Putin, while decrying the warrant for Netanyahu. Members of Congress threatened the ICC judges with sanctions once again.
The US State Department viciously smeared Francesca Albanese. the United Nations (UN) Special Rapporteur on the occupied Palestinian territories, as “antisemitic” for her straightforward reporting on what is going on in Gaza and the Palestinian West Bank.
On a weekly basis, State Department spokesman Matthew Miller danced around Israeli atrocities, saying Israel should investigate itself and letting the Netanyahu government dictate the terms of discourse. He acted, as well, as though the US was not resupplying Israeli arms and ammunition in real time and actively participating in the Gaza war crimes.
So this was our paradoxical reality in 2024. Key institutions of International Humanitarian Law finally stepped up to address the plight of the Palestinians and the Israeli genocide in Gaza, which was a substantial step forward for the international rule of law. But it was all undermined by the United States, Britain, France and Germany.
2024 was the year that the demand for impunity for Israel from those four countries broke International Humanitarian Law so badly that it is not clear it can survive.
The even bigger danger: The Israeli demand for impunity and the willing collaboration of traitors in Congress and elsewhere in the US government could act as the tip of the spear in breaking the US Constitution and ending the First Amendment.
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