By Michael Every of Rabobank

Karim Khan, chief prosecutor of the International Criminal Court (ICC), has announced he is applying for arrest warrants for Israeli Prime Minister Netanyahu and Defence Minister Gallant, the first time leaders of a Western democracy have been accused. Sadly, however, this does not signal a new era of global adherence to the rule of law, but rather the ICC’s likely self-evisceration.

Khan wants to arrest Netanyahu and Gallant, as a start, for “causing extermination, starvation as a method of war, including the denial of humanitarian relief supplies, [and] deliberately targeting civilians in conflict” within “the territory of the state of Palestine” (which is not a state), and perhaps even for before October 7. Balancing this, though not his CNN speech or media headlines, Khan is also applying for arrest warrants for Hamas leaders Sinwar, Deif, and Haniyeh –two hiding in Gaza, one lounging in Qatar– for extermination, murder, hostage taking, rape, and sexual assault in detention. Even so, Khan is equating an elected Western leader –albeit one Gallant himself last year implied is demagogic, and last week accused of dragging the war out because he can’t make a political decision on what happens next– to terrorists.

So, some celebrate. Others despair and argue the evidence against Israel is clearly biased while that against Hamas is from its own bodycams; the ‘controversial’ phrase Netanyahu used, “Remember what Amalek did to you,” is written on the wall at Yad Vashem and in The Hague Holocaust memorial; the allegation Israel closed all crossings into Gaza includes Rafah, which it did not control until very recently; Hamas steals most incoming aid and resells it at vastly inflated prices; Hamas just hugely reduced the casualty figures Western media, politicians, and the ICC repeat; Israel’s judiciary hold its leaders to account; and testimony from Western military experts on the exemplary way Israel carries out the (awful) business of urban combat was ignored. As such, Israelis across its political spectrum are calling this a “blood libel”, as from Europe’s past and today’s US campuses; Hamas complains it should be allowed to do anything as “resistance”; and others point out the ICC hasn’t dived in against clear-cut abuses in many other locales. In short, this is all controversial and divisive rather than lining us up behind the rule of law.

Indeed, the ICC decision can be seen as neutering the right to self-defence it professes to support: what Israeli military action would the Court allow vs. tens of thousands of heavily armed terrorists in a crowded urban area if Israel was, as it strongly claims, simply obeying the existing laws of war? (Which, to be clear, are like calorie-free double chocolate fudge cake: more about psychological than physical comfort or health.) If nothing effective, Israel’s and the West’s enemies will take note and heart. “They knew exactly where to hit us,” says Spock in Star Trek II.

Israel is not a signatory to the ICC so can simply ignore any arrest warrants like Russia’s President Putin, though he travels in the BRICS when Israel is part of the West, even if parts of the West no longer seem to want it. Indeed, it’s within the West where rifts will be felt most. Non-signatory US senators had lobbied the Court to back off, but Khan publicly told them to – no repeat of his dropping investigations into war crimes committed by the US in Afghanistan, and secret CIA prisons, “because of the limited financial means of the ICC.” However, that means defunding the ICC is likely back on the US agenda for Republicans: revenge is a dish best served cold in 2025. And while progressive Democrats cheer, President Biden has called the arrest warrant requests “outrageous.”

Even Europe won’t be spared this polarization: Belgium has backed the ICC, Czechia has already called its action “appalling”, Austria “non-comprehensible”, the UK government which appointed Khan, “unhelpful”, and how will Wilders or Meloni react? So, does the West back the Court or not?

More specifically, can the West still send arms to Israel? If so, what does the ICC step really mean? If not, even with a shift to self-reliance and/or non-ICC India, where does this leave Israel vs. Iranian proxies and Iran close to a nuke? And as Hal Brands notes in ‘Ukraine Is Now a World War. And Putin Is Gaining Friends’, where does this leave Western economies vs. the joint threat of Russia, China, Iran, and North Korea?

The Court therefore stirs the pot in a troubled Middle East already seeing unrest in Israel, where unpopular PM Netanyahu is if anything strengthened by the ICC move, as Trump has been with his court cases; the current Israel-Hamas war, which can still grow to encompass Hezbollah more fully, and where any ceasefires now look more difficult to achieve; an ongoing Houthi blockade maybe to expand to the Mediterranean; Sudanese starving because of it, when not fleeing a civil war led by Islamists; the Saudi King gravely ill; Kuwait cancelling its experiment with democracy because people vote for parties like Hamas; the sudden death of Iran’s President Raisi in a helicopter crash; and the US still trying to achieve Israel-Saudi normalisation under a US (and Israeli) defence umbrella.

What might the Saudis — not charged by the ICC for the war they carried out vs. the Houthis in Yemen — think of that proposed defence guarantee when it knows US and Israeli hands are tied against the kind of foes it faces? Or maybe the US will just push even harder for the deal to be done now as a result: we shall soon see.

Meanwhile, showing how far we are from a world of justice, or even basic truth, Iran’s Raisi was known as ‘The Butcher of Tehran’ because of his responsibility for many thousands of deaths in the 1980s, and he also helped with multiple human rights abuses since, with no charges leveled by the ICC for either. Instead, while some Iranian youth openly celebrated his death, Raisi got a minute’s silence at the UN Security Council and official condolences from NATO, the EU, and the US State Department, even as Iran arms Russia vs. Ukraine, the Houthis vs. EU shipping, and the proxies which kill US soldiers. It’s as bad a joke as the Israeli social media quip that Raisi was killed by a Mossad agent named Eli Kopter, which some in Hamas thought was real for a while.

To summarise, some may think The Wrath of Khan is the genesis of a new ideal world of the rule of law. Sadly, we can’t be Reliant on such utopianism in a realpolitik world where Western Enterprise is being struck violently, including from within its own team.

As Spock says, the needs of the many outweigh the needs of the few, or the one. But which few, or one, will it be?

I suspect the ICC. If so, another pillar of the international liberal order’s architecture joins those already seen as impotent (i.e., the WTO and UN), irrelevant (i.e., the IMF and World Bank), or completely incompetent (i.e., The Ivy League, but also pick your acronym).

That backdrop may not vex overexcited markets much. However, it’s another sign of what The Economist just bewailed, echoing my warning from January 2016: that the international liberal order is at risk of collapse, or at least fragmentation.

At some point the lack of a global rule of law, or clashing global rules of law, matters mightily.