Equivalence Under the Law Is Not False

The notion that international law doesn't apply equally to everyone undermines the very concept of the rule of law.

Nov 26, 2024

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U.S. President Joe Biden has repeatedly criticized international legal bodies for drawing a “false equivalence” between Hamas and Israel through the International Criminal Court’s issuing of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defense Minister Yoav Gallant and by the cases at the International Court of Justice accusing Israel of apartheid and genocide.

Biden, of course, is far from alone. This is a standard talking point in Israel’s defense and one frequently used by its supporters in the United States, Europe, and elsewhere.

The response is often focused on comparing the actions of Israel and Hamas, or Iran, or Hezbollah, or whomever the comparison is being made with. Demonstrating that the devastation Israel causes is many orders of magnitude greater, and that its claims of acting only in self-defense and solely in response to attacks on its own citizens are false is, indeed, important.

Yet there is something even more fundamental, even more basic to the kind of global society we want to build.

When we call on the international legal system to bring war criminals to justice, to put them on trial, weigh the evidence against them, and mete out sentences which we hope will deter such actions in the future, we are willfully and correctly drawing an equivalence with all actors, and it is imperative that we do so.

That means that the ICC, which adjudicates individuals’ war crimes, must be applied to all equally if it is to have any legitimacy as a legal body. It is irrelevant whether the accused is a prime minister of a western state, the head of an African state or military—who have made up the overwhelming majority of those to have been tried at the ICC until now—or a leading figure in a militant group, whether or not that group is on a list of terrorist entities.

The law must be applied to all.

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Americans, for the most part, had no problem with putting Slobodan Milosevic on trial for crimes that, as terrible as they were, are dwarfed by Israel’s. Nor did they have a problem with the arrest warrant issued for Vladimir Putin in 2022. Indeed, Biden and his Secretary of State Antony Blinken passionately cheered on the ICC.

"I think anyone who's a party to the court and has obligations should fulfill their obligations," Blinken said at a Senate hearing in 2023. It was a convenient bit of verbal gymnastics, of course, as the United States is not a party to the ICC. Still, it’s quite different from Biden’s statement in response to the ICC arrest warrant for Netanyahu, where he said, “The ICC issuance of arrest warrants against Israeli leaders is outrageous. Let me be clear once again: whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas.”

This isn’t just a double standard. Such hypocrisy is so common in Washington that the only reason to remark on it is to try to stop it from being normalized even further.

This is an explicit statement negating the very concept of the rule of law. If the law only applies to America’s enemies, it’s not law, it is simply the diktat of the imperial power. If the law does not apply to everyone equally, no one will respect it, and that lack of legitimacy will mean we simply fall back and accept the chaos of international relations as we have known it for most of human history.

The force of the international legal system is not applied equally. Most world leaders who have been charged by the ICC have been from the Global South. That is not justice, especially when we consider that, while there have certainly been war criminals in the Global South, the damage done by Global North leaders, especially American ones, has been far greater and far more brutal.

International law in its current form derived from older sets of laws, but emerged after World War II, as efforts to deny the right of conquest spawned all sorts of regulations that, after the atrocities of the Second World War, strengthened norms governing the treatment of civilians, prisoners of war, and the laws of war generally. It was meant to provide some hope for a more stable, secure world.

One can easily argue that it has failed. I would argue that, while it has obviously not succeeded yet, the unrelenting attack the rule of international law has faced by the United States, Israel, Russia, and other states with expansionist ambitions demonstrates the potential international law has to create some sort of real order in the world that can address some of the worst of the horrors we have seen and continue to see today.

But that can only happen if the law is really law. For Americans who want to promote a better world, we need to demand that our country become a party to the ICC and ICJ. We need to challenge the narrative that only Black and Brown people, and the occasional European who steps out of line, can be brought to justice. We need to embrace, not run from, the concept of equivalence under the law for all.

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We must advocate not for a system that pre-judges a crime but puts people and states on trial when a horror has happened. So, a given incident might be justified by happenstance, some accidental circumstance that could not be foreseen. It may have been an action that can be justified by a right to resistance or self-defense. That must all be decided in court. The idea that an arrest equals a conviction must also be done away with. Trials matter, or they should.

On that basis, it is also outrageous that Iran’s Supreme Leader, Ayatollah Ali Khamenei, called for a pre-emptive death sentence for Netanyahu and Gallant. Regardless of how we judge the evidence—and it is overwhelming against Netanyahu and Gallant—we cannot accept extrajudicial killings. If we are to have international law, then law it must be. Arrest them, try them, convict them. Summary executions without due process might satisfy a yearning for revenge but it sets the cause of creating a system of international law that functions—which our current system certainly does not—back many steps.

Khamenei’s statement is no better than the despicable law the United States passed in 2002, formally called the “American Service-Members' Protection Act,” but nicknamed the “Hague Invasion Act.” The law allows the United States to take all necessary actions, including military force, to free any American or ally being held by the ICC.

One can understand why an imperial power would resist international law with all its might. It is up to us to fight for an effective legal system. Biden, and soon Trump, will give us an arena to fight in. It is crucial that we recognize how important this fight is. It is a long, hard one, as all of our fights are. But few are as important for us to stick with until we win as this one.

And it starts by affirming that the law applies equally to everyone, whether they are American, Israeli, Palestinian, Iranian, a governmental leader, or a guerilla fighter. It applies to all, equally.

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Equivalence Under the Law Is Not False

The notion that international law doesn't apply equally to everyone undermines the very concept of the rule of law.

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