It’s the latest exposure of our hypocrisy in claiming leadership of a ‘rules-based world order’

By Herbert Rothschild

On Jan. 5, 2023, the Justice for Victims of War Crimes Act, S.4240, became public law. It granted the U.S. government power to arrest and prosecute war criminals if they come to the U.S.

On that occasion, Sen. Dick Durbin, chair of the Senate Judiciary Committee, said, “By passing this vital legislation, we are sending a clear message to Vladimir Putin: Perpetrators committing unspeakable war crimes, such as those unfolding before our very eyes in Ukraine, must be held to account. We have the power and responsibility to ensure that the United States will not be a safe haven by (he meant “for”) the perpetrators of these heinous crimes.”

Just over two months later, the International Criminal Court issued a warrant for Putin’s arrest as a war criminal. That action was applauded by U.S. leaders, even though the U.S. has never become a signatory to the 1998 Rome Statute of the International Criminal Court.

Fast forward to last week, when another piece of legislation, HR23, passed the House of Representatives 243 to 140. Its awkward title is Illegitimate Court Counteraction Act. In essence, it authorizes crippling U.S. sanctions of any entity or person who assists the ICC in investigating, arresting, detaining or prosecuting persons we want to protect from prosecution as war criminals.

It hardly needs saying that the bill was prompted by the ICC’s issuing arrest warrants last Nov. 21 for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The ICC alleges that both men bear criminal responsibility for war crimes and crimes against humanity committed during the Israel-Hamas conflict. It issued a similar warrant for Mohammed Deif, a senior Hamas military commander, but such evenhandedness apparently made little difference to those promoting HR23.

After it passed the House, Chip Roy, R-Texas, lead sponsor of the resolution, called the ICC an “illegitimate kangaroo court.” “Make no mistake, if the ICC is allowed to target Israel unchecked, they will go after American service members and veterans.”

As I wrote in a column back in 2023, fear that the ICC might declare U.S. soldiers and politicians war criminals has kept the U.S. from becoming a party to the Rome Statute. That concern obviously hasn’t kept us from extolling the ICC when it charged people we don’t like with war crimes. But as I have written time and again, hypocrisy in our foreign policy has never troubled the conscience of most Americans and our leaders.

I was delighted that Foreign Affairs, which long has been the house organ for a foreign policy establishment committed in all but name to U.S. global hegemony, ran an article in its Dec. 3, 2024 issue repudiating that goal. Written by Nancy Okail and Matthew Duss, leaders of the Center for International Policy, it began by asserting, “Putting a new coat of paint on the old liberal internationalism will not do — neither for Americans nor for most of the world’s countries and peoples, who understandably see U.S. leaders’ appeals to a ‘rules-based’ order as a thin varnish for an order ruled, and often bent or broken with impunity, by the United States and its friends.”  

Could there be a more striking confirmation of the hollowness of our appeals to a ruled-based order than our determination to destroy one of its chief institutions because it applied international law to our allies as well as our enemies?

I’ll call to mind some of the crimes enumerated in the Geneva Convention and its Protocols that an international court could reasonably try Netanyahu for committing: collective punishment, making no meaningful distinction between combatants and noncombatants, abuse of prisoners, targeting healthcare facilities and use of hunger as a weapon of war. The U.S. is signatory to the Convention, although not to the Protocol that specifically prohibits hunger as a weapon of war.

What struck me most about Roy’s statement, though, is how he views Israel’s connection to the U.S. It isn’t just as an ally. In his view the two countries are so intertwined that if we allow the ICC to prosecute Netanyahu, it’s certain to prosecute Americans. Talk about the tail wagging the dog!

By the time you read this column, the U.S. Senate may have voted on HR23. If it passes and gets signed into law, I think it will set a legal precedent. We will be guaranteeing immunity to the actions of parties over whom we have no legal control. At least when we shielded our own citizens from ICC prosecution, we retained the power to prosecute them ourselves.  

While its acknowledged intention is to protect Israel’s leaders, HR23 is written broadly — it shields persons in any allied country that, like Israel and the U.S., is not a party to the Rome Statute. Putin himself will fall within the protection of HR23 if Donald Trump decides that Russia is an ally — not so far-fetched a scenario. If he does, it will be a fittingly ironic end to our bad-faith relationship with the ICC and the international rules it enforces.

Ah, Tony Blinken, I’m so glad to be seeing the back of you.

Herbert Rothschild’s columns appear Fridays. Opinions expressed in them represent the author’s views. Email Rothschild at herbertrothschild6839@gmail.com.