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Notes -
Another case of culture war cancellation dropped, this time somewhat more important than the usual cases.
The case of Nicolas Guillou, French judge at the ICC, cancelled by Marco Rubio personally.
If your French is not sufficient, here is Xitter summary.
Can it happen to you?
Not in this way, not even the most IRL important mottizen is worthy of Marco's personal attention.
If it happens, it will happen because AI analyzed your online activity and decided it crossed a threshold of dangerous nihilist extremism (and you could do about it just as much as Nicolas Guillou, this means nothing at all.)
Regardless of your feelings about Netanyahu's actions as PM of Israel, he is a democratically elected head of state who took office in a free and fair election. This is the first time the ICC has ever been so bold as to issue a warrant for a leader who meets that definition (prior recipients such as Putin and Gadhafi mostly dont even bother to wave the fig leaf of democracy), and IMO sets a terrible, no-good, very bad precedent that should be treated with utter contempt by all peace-loving denizens of the world.
Issuing an actual international arrest warrant because you don't like what the leader of a democracy is doing is dangerous and destabilizing to the norms of international behavior. The only people who can get away with it are those who have enough actual international muscle to shake up the playing field, and the ICC definitely fails that test. Our robed man of excessively signaled virtue fucked around and is now finding out. This is a good thing.
Why should being democratically elected shield you from ICC prosecution? The whole point of the ICC is that it is, well, international; you may believe that the people of Israel forfeited their right to judge Netanyahu when they elected him, but the ICC does not judge in the name of the people of Israel but in the name of the people of a pretty large chunk of the Western world. If anything, maybe the majority of Israeli voters should also stand trial in some sort of reverse class action suit - I think it's high time to patch out the stage magic trick by which democracies make accountability disappear.
For a very different polarity example, by all accounts Milošević was elected democratically and "genocide the Albanians" seems to have represented the Serbian people's will pretty accurately in the '90s. Was it "dangerous and destabilising" that he was dragged to the Hague for enacting it? Are you instead using the old descriptivist definition of "democratic" as "friends with the US" here? (Playing brazen word games like that is how you wind up bleeding soft power.)
This is smuggling in a consensus of the basis of the ICC authority. The ICC does not get to judge because it does so the name of the people of a pretty large chunk of the Western world, nor does it get any extra legal authority from having the word 'International' in its name. These are utterly irrelevant factors. It would have the exact same jurisdictional reach if it's title were changed to the European Criminal Court. Its jurisdiction beyond non-signatories would be just as valid if its composition switched so that non-signatories were the signatories and the signatories were the non-signatories.
The International Criminal Court is a treaty-law organization. Its powers derive not externally, but from the sovereign authorities of its constituent members. As such, by it's very nature, it judges in the name of its treaty signatories. No more, and no less.
But this also means that- as a treaty-law organization- a treaty law organization's legitimacy in applying authority to non-signatories ends where the treaty's signatories end. Other- and higher- principles of international law recognize that the sovereign right of sovereign states to bind themselves in international laws, i.e. treaties, also entails to not join into such international agreements. In turn, the sovereign legitimacy of those states, whose sovereignty is what enables them to commit or not to such arrangements, derives from the legitimizing source of those states.
As such, it is not that 'being democratically elected should shield you from ICC prosecution.' It is that 'a legitimate sovereign state, whose sovereign legitimacy derives from its democratic processes to elect its own leader, should have the right to refuse to become a member of any treaty, and to refuse attempts to impose treaty-law they are not a part of.'
A pretty large chunk of the Western world has no greater grounds to pass judgement or ignore the sovereignty of other nations than another chunk of the Western world, or the non-western world.
Yes.
Opposing Milosevic was moral, righteous, and even lawful for reasons beyond the ICC. UN treaty law that the Soviet block was also nominally a party of already forbade genocide. There's a reason that for decades when anti-NATO shills try to raise 'muh sovereignty' objections to the Yugoslav interventions, they conspicuously avoid asserting Milosevic's own legal obligations at the time. At the same time, dragging Milosevic also entailed an international war that- but for a geopolitical context of a temporary decrease in Russian military capability to intervene- could have expanded into a much broader regional conflict. 'Just war' does not mean 'safe war.'
But the R2P ('Responsibility to Protect) principles also encoded into the Rome Statute and that were invoked over Milosevic have absolutely been both risky and destabilizing when put into practice. Its attempts to assert universal jurisdiction as a basis, reason, and even requirement for states to act to resolve the injustice directly contribute to geopolitical conflicts when the state being motivated is acting against a state that- even if evil- will work to ensure its own survival. And that's when R2P works.
R2P was a contributing factor / legitimizer to the neocon wars of the middle east, including the Iraq War, when 'bringing Saddam to justice' for many very real and very bad things he did to the Shia and Kurd populations entailed cracking apart a police state and triggering a civil war. R2P can be directly tied to regional policy disasters that have made the humanitarian issues they were intended to resolve worse, such as the Libya intervention that a pretty large chunk of the western world was happy to use as a pretext to settle old scores with a dictator who had, if not repented, long since stopped being a state sponsor of terrorism that ran up those scores. R2P might have 'succeeded' with Milosevic, but that experience and validation was what contributed to the American participation in Somalia, and thus the Battle of Mogadishu in 1993, which in turn had just a little to do with the American decision to sit out the far-more-genocidal rwanda genocide in 1994, and (some time later) the electoral prospects of a later American president who ran on a platform of domestic focus and compassionate conservatism.
Ah, but those are American military interventions. Perhaps you 'only' meant legal stuff, not enforced by state hard power?
Well, it turns out that when motivated would-be litigants sympathetic to separatists or insurgencies would like to sue countries for the ugly business of fighting said conflicts, it neither inclines the states to hand over jurisdictional authority to the potentially sympathetic judges that motivated parties are seeking to court shop, or to adopt the belief systems of the people who think they really should anyway. Which is how nations like India (which speaks for about 1/6th of the whole world, not just a good chunk of the west) ends up not exactly wanting to become a part of that legal mindset, and involved in expatriate conflicts with in-exile separatist advocates who absolutely will try to lawfare whatever they can wherever. Which, in turn, brings India- or India equivalents- into geopolitical conflict with the states hosting such litigants. Hence the India-Canada issue, which shapes the India-US relationship, which is very significant to the India-US-China dynamic, which is the single biggest geopolitical stability issue of the century.
Or, conversely, claims to universal jurisdiction lets any state attempt to lawfare-litigate as a geopolitical cudgel. South Africa absolutely has no internal or international political interests to be advanced by accusing Israel of genocide, it is solely because they really care that much. And, since the South African movement created a legal obligation on the part of Europeans to act against Israel, which weakens the European influence on Israel to end the war (cause, you know, the Prime Minister of Israel will no longer go to European capitals where they can try and talk or lobby him). This might have made the Israelis more susceptible to American pressures to end the war in the Trump peace plan (that was widely panned as being unrealistic and prone to failure), but that influence / negotiation goes both ways, since things the US President is more comfortable with are no longer deal-breakers if there is no European deal to break. So while the Europeans recognized a Palestine, the Israelis restarted a long-restrained eastern jerusalem / west bank settelement plan that even the litigants would probably eagerly concede / argue / accuse of being bad for the (West Bank) Palestinians, but which the ICC won't have any real recourse except to support an invasion to take by force of arms, or sit around for years/decades hoping that international isolation will lead to an Israeli collapse... which no one claims will help the Palestinians in the interim, if at all.
And let's not get started on the topic of amnesty in international law, and the commodification/commercialization of it as an economic migrant population flow policy, and what various states have to accept- in terms of legal and political opposition- to mitigate it. Or exploit it as leverage, such as the totally-not-Russia-encouraged Belarusian-Poland border crisis the year before the Ukrainian invasion, which totally-wasn't-a-signal of what too much support to Ukraine could lead to. Or used globally in later propoganda as a demonstration of what European claims to human rights law really means.
All of which further weakens the role of humanitarian protection in international law. When you present humanitarian considerations as self-evidently legitimate basis for overcoming all objections, including sovereignty, you are incentivizing states to pre-emptively avoid systems created to respect it because there is no limiting principle. It sets incentives for motivated parties to invoke it as much as they can, but surviving states that don't want to be eternal hostages to Current Thing to systematically reduce the relevance of laws intended to codify empathy of a different era. It even incentivizes states to take fait accompli actions that international law cannot reverse in any sort of consistent or timely manner.
But worst of all, it doesn't normalize prioritizing humanitarian consideration. International law normalization is a function of how many states actually do the thing. The more states that are pushed by, or to, cynicism to water down humanitarian protections, the weaker those protections become when they are needed most, not as steady-state lobbying devices but as calls to action to stop imminent genocide.
Which- if it's not clear enough- is a reason to overcome sovereignty objections. States concede that genocide is not an internal-only matter when they sign certain treaties. But when this gets expanded and leveraged beyond actual not-even-technically genocide on grounds of universal jurisdiction, at the behest of people whose interests aren't actually genocide, the consequences (of bad policy) and the blowback (of delegitimization) can be measured in terms of catastrophes.
Milosevic is a symptom, not a cause. It is not 'because NATO countries intervened in the caucuses, these bad things happened.' Rather, NATO intervened because of pre-existing paradigms of optimistic / moralistic assumptions that, when run into reality, regularly do not pan out. That does not mean they never pan out. Again, Milosevic. But when they fail, they can fail in ways that make existing problems worse, and destabilize entire geopolticial regions for years or decades to come.
The premise behind R2P have always been risky and destabilizing. Sometimes risks are worth taking, even when they incur costs. But risky and destabilizing they still remain.
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