Editorial #43: The Ides of March

In Shakespeare’s Julius Caesar, Caesar is warned to “Beware the Ides of March” (Act I, Scene II). Still, he did not foresee his eventual assassination and was blindsided by his confidant Brutus. Similarly, while the international rule of law has been in crisis before, its current demise (cf. here, here) came sooner and more forcefully than expected and at the hands of unlikely conspirators. Particularly the International Criminal Court (ICC) is faced with an unprecedented level of backlash and while it has always been a thorn in the flesh of powerful states not parties to the Rome Statute, what is new is the open disregard for their obligations under the Rome Statute that its member states display. The latest blow was delivered within 24 hours of the German parliamentary elections in February, when the prospective new German chancellor, Friedrich Merz, invited Benjamin Netanyahu to Germany despite the ICC’s arrest warrant against him. Placed in the bigger context of backlash against the ICC and of increasing open violations of international law, Merz’ apparent disregard for the ICC raises serious doubts about Germany’s commitment to the international rule of law at the worst possible time. 

The International Criminal Court under Pressure

On 6 February 2025, US President Trump issued an Executive Order imposing sanctions on the ICC. The sanctions are intended to demonstrate the US opposition to the ICC prosecutor’s investigation into the Situation in the State of Palestine and the issuance of arrest warrants against, i.a., Benjamin Netanyahu. The order is primarily designed to sanction the ICC Prosecutor, Karim Khan, but covers more broadly all those who assist or support the ICC in certain investigations or proceedings. This attack on the ICC was criticized by most – though not all – states parties to the Rome Statute, who reaffirmed their “unwavering support” for the Court in a joint statement. While one may immediately feel a sense of relief when leafing through this paper protest, it won’t be long until the doubtful question of what this “unwavering support” is supposed to look like in practice quickly creeps in. 

As with any international legal obligations, adherence to the obligations under the Rome Statute is not perfect. Over the last months, there have been a striking number of open conflicts between the ICC and its member states. Mongolia, e.g., failed to arrest Russian President Putin, against whom the ICC’s Pre-Trial Chamber II issued an arrest warrant in 2023. Notably, Mongolia’s first impulse was stressing its dependence on Russian oil and electricity imports, thus providing political rather than legal reasons to justify its non-compliance. In its subsequent submission to the ICC, Mongolia reiterated its dependence on Russian imports but also stressed that it could not have arrested Putin, as he enjoyed immunity as a sitting head of state of a non-state party to the Rome Statute. Whether Mr. Putin enjoys personal immunity vis-à-vis the ICC and states acting on the Court’s behalf is of course debatable; while the Pre-Trial Chamber of the ICC maintains that there exists no immunity before the ICC – a position the ICC holds since the Appeals Chamber’s 2019 Al-Bashir judgment (paras. 95 ff.) – there are at least doubts whether this holds true for the nationals of third states, which have not waived their immunity and who thus appear to be protected by Art. 98 Rome Statute and the general third party rule codified in Art. 34 of the Vienna Convention on the Law of Treaties (cf. here; here). Notwithstanding the immunity issue, the Mongolia incident is notable because it was Mongolia’s first impulse to justify its non-compliance with political arguments only, thus apparently conceding that it had violated international law. Moreover, even assuming that Putin did enjoy personal immunity in Mongolia and could thus not have been lawfully arrested, it seems hardly reconcilable with Mongolia’s good faith obligations under the Rome Statute to invite a person whose arrest is wanted by the ICC (though the exact scope of the good faith obligations under the Rome Statute is, again, debatable). The ICC’s Pre-Trial Chamber II referred the issue to the Assembly of State Parties, where it was put on the agenda for the December 2024 meeting and while there is no publicly available information on the discussions in respect of Mongolia, the Assembly did adopt a Resolution on cooperation with the Court.

As with most resolutions made shortly before the new year, this one did not hold for long: Just a month after this resolution was adopted, Italy failed to comply with a request for the arrest and surrender of Mr. Osama Elmasry Njeem, a Libyan national against whom an ICC arrest warrant was issued (see here). Njeem was initially arrested but then released and expelled to Libya. The Italian lack of compliance appears to be motivated by political considerations too, and there is not even a credible claim that Mr. Njeem enjoyed immunity and thus could not have been surrendered to the ICC (see here). To be fair, Italy was not among the 79 state parties who have reaffirmed their “unwavering support” to the ICC, and thus does not have to put up with the reproach that it acted hypocritically. 

Besides those open refusals to cooperate with the Court, there were also more subtle conflicts between the ICC and its member states, most notably in relation to the arrest warrants issued against Benjamin Netanyahu and Yoav Gallant. After the ICC Prosecutor had requested the issuance of arrest warrants in the “Situation in the State of Palestine”, several amici offered advice to the Pre-Trial Chamber, with most arguing that there was indeed no issue with the Pre-Trial Chamber proceeding with the issuance of the requested arrest warrants. Several states, however – Argentina, the Czech Republic, the Democratic Republic of the Congo, Germany, Hungary, and the US – urged the Pre-Trial Chamber to dismiss the requests for arrest warrants. These amici briefs were based on shaky arguments and could hardly be seen as good faith efforts to assist the Pre-Trial Chamber in its work, but were rather partisan efforts to delay the administration of international justice (as argued in more detail here) and consequently did not stop the Pre-Trial Chamber from issuing the requested arrest warrants. The German amicus brief was particularly notable, as it asked the Pre-Trial Chamber to be more lenient towards Israel, considering that Israel is a democratic state which is “principally committed to the rule of law” (para. 15, see here for a critical analysis). This consideration is, of course, alien to the Rome Statute and difficult to reconcile with the idea of sovereign equality. Conversely, states which are “principally committed to the rule of law” have the same option as all other states to preclude the ICC from exercising its jurisdiction: initiating genuine investigations, cf. Art. 17(1)(a) Rome Statute, and it should of course correspond with their self-understanding to initiate these investigations and conduct prosecutions where necessary. If they fail to do so, however, should not states that are “principally committed to the rule of law” welcome investigations by the ICC? 

Who Is Principally Committed to the Rule of Law?

This question gained new traction recently. Just after the German general parliamentary elections, the prospective new German chancellor, Friedrich Merz, invited Benjamin Netanyahu to Germany, assuring him that he would not be arrested on German soil. Merz stated that notwithstanding the legality of the arrest warrant – which he apparently accepts – it would be “completely unimaginable” that an Israeli Prime Minister was arrested in Germany and that he would “find ways to prevent his arrest”, repeating statements he had made on the campaign trail before (cf. here, here, and here, translation of the author). In brainstorming options of how to prevent Netanyahu’s arrest in Germany, Friedrich Merz seemed to have missed the most obvious one: To simply refrain from inviting Mr. Netanyahu. In doing so, however, Mr. Merz does not only risk violating both international and domestic law (cf. here; here) and completely unnecessarily provokes a conflict with the ICC. More, by announcing that he would “find ways” to prevent the execution of the arrest warrant even though he accepts that the warrant itself is legally correct, Mr. Merz displays a concerning disregard for the (international) rule of law. 

Violations of international law have often been brushed off as not too problematic for the international legal system as a whole by reference to the ICJ’s dictum in its 1986 Nicaragua judgment, where the Court held that by invoking exceptions and thus trying to justify their breaches of international law states confirm rather than weaken the rule itself (see here, para. 186; cf. here, here). The case is entirely different, however, where the states in question do not even try to offer a reasonable – or even a “demonstrably rubbish” – justification for their breaches of international law, but even announce and embrace them beforehand. The complete disregard for their obligations under the Rome Statute which member states currently demonstrate is reminiscent of the “very specific and limited” breaches of international law the UK conceded some years ago, for which it was rightly criticized (e.g. here). These apparent attempts to establish a primacy of politics over international law run against the fundamental purpose of the rule of law to “lift law above politics”.

Conclusion – Demonstrating Commitment to the Rule of Law Is More Important Than Ever

It is not surprising that the US – let alone under Donald Trump’s leadership – does not always uphold the international rule of law and that it has made the ICC out as one of its main targets; after all, which other state has a domestic law effectively authorizing its president to invade The Hague should its nationals be detained or imprisoned by the ICC? That also the likely new chancellor of Germany, Friedrich Merz, rather bluntly announces to “find ways” to ignore an arrest warrant by the ICC, however, should serve as a reminder that commitment to the rule of law is nothing that simply characterizes certain states, but that has to be demonstrated constantly. To be clear, this is only the peak in a German turn from international law that has been observable before; the previous German administration was far from perfect too and its foreign policy has been criticized as shaped by double standards. What is new, however, is the open disregard for international obligations. It is a particular irony that Germany, which effectively asked the ICC to be more lenient towards states that are “principally committed to the rule of law” not even a year ago, may now itself disregard the rule of law and openly violate its obligations under the Rome Statute. Germany wants to be a “champion of international law” and has recognized its special historical responsibility, especially towards the ICC; the open disregard for Germany’s obligations under the Rome Statute displayed by Friedrich Merz is thus particularly distressing – Et tu, Friedrich? In times where the Ukrainian president is reprimanded in the White House for daring to point out that it was, in fact, Russia which started the war in 2014 and escalated it in 2022, and where a significant number of states (including the US and Israel) are siding with Russia in the UN General Assembly, it must be the German government’s top priority to leave no doubt about its commitment to the international rule of law.