France, Israel and the ICC: Courting state sovereignty and international legal obligations

Every time I visit Paris - and I had amazing opportunity to visit the city twice - I must go and visit The Bastille. It is sort of a pilgrimage for me. The statue symbolizes freedom and justice - freedom from tyranny and fear, and hope for the realization of equal standing of human beings everywhere. I would go as far as to say that 'liberty, fraternity and equality' do sum it up for me! :) What is quite interesting is that there is - or at least used to be - a roundabout around the statue you see in the picture above. Cars are - or have been - able to drive around the statue quite freely. (And, if you know how people drive in France, please take the notion of driving 'freely' as broadly as possible!)

With the latest decision by France to both, declare its support for international law and the International Criminal Court (ICC), and to respect diplomatic immunity of heads of governments it seemed that France is squirting it's international legal obligations on the one hand, and its respect for state sovereignty on the other. The two notions seem nearly contradictory because the ICC is able to investigate and prosecutor individuals regardless of their position, ethnicity, nationality, gender, or even what type of regimes - democratic, authoritarian, theocratic, monarchical, etc. - they originate from. But, of course, in praxis it is all a function of a delicate balance. And, here is why: the International Criminal Court, while challenging some aspects of state sovereignty, is in fact embedded in a statist international realm. State sovereignty is the key norm or principle that all states live by, but it also renders the global system legally equal. This is the reason why representatives of the State of San Marino are sharing political space with the representative of the United States of America at the United Nations, and elsewhere. It renders the system equal in more ways than one.

At the very same time, one of the monumental aspects - or innovations of the ICC - was that it went above and beyond this aspect of the global system. It institutionalized the notion that state sovereignty, and with it heads of state immunity, for example, or the diplomatic immunity of government officials cannot be used as a shield from answering to allegedly having committed the most heinous crimes known to humanity. This is what we see playing out in front of us with regard to the current arrest warrants issued against the current Prime Minister of Israel and Israel's former Minister of Defense. These were steps the ICC was required to take; this is what the ICC was created for. And, these steps have caused, and will cause, significant 'headwind' for the Court, and state relationship as well.

However, given that the Court exists in a 'statist' realm where states are the referent objects of international law and relations, it is states themselves that are primarily responsible for investigating, charging perhaps, but most importantly protecting their own citizens from mass atrocities. The statute of the Court, in fact, institutionalizes this aspect of international dynamics in the form of something called 'complementarity.' The Court is complementary to national jurisdictions, and not above them. This means that it is states - Israel, Palestine, France, Canada, etc. - that should take the next steps in this saga - if we may call it as such.

And so, it certainly makes sense that Israel vehemently opposed the charges, and that France was at the very most 'lukewarm' with regards to living up to its international legal obligations as a member of the ICC. I would go as far as to say that Canada could take similar steps in that if a Prime Minister, or even if the Governor General, were accused of having committed crimes within the jurisdiction of the Court, no effort would be spared to begin and complete a domestic, national process, and within the Canadian legal system at that. I think we would have the legal and political will.

Of course, these initial declarations by the states involved were nothing more than that. What we will need to pay attention to is what states will do in the coming weeks. Again, the reactions are understandable because the Court shares space with other global actors - primarily states - that have their own interest in mind. As I mentioned this above, I think the reactions should be taken part and parcel with what the mandate of the Court is, and in what space - within the realm of global relations - it operates. But, the onus is now on states to investigate, prosecute and protect.

The agenda of international criminal justice therefore hinges on both, state responsibility, and the global consensus that mass atrocities must be dealt with in the short and long terms, above all for the sake of victims and non-combatants! These norms seems contradictory, and states may be seen as 'driving around in circles', courting both. Normatively, the ideals of justice should be placed above state interests but it was state interests which gave rise to the norms and principles that are inbedded within the ICC. Both make sense and must be accepted. We like it or now, state sovereignty has had a longer 'shelf life' as a norm, but holding individuals accountable for mass atrocities - or one's sense of justice, equity and fairness - seems to be innate.

Above all, we cannot forget, once again, about the victims!