Israelis have grown accustomed by now to the unrelenting hostility of most international organizations, but even so, the International Criminal Court prosecutor’s request for warrants to arrest Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant shocked many. Israeli officials are used to criticism, but the threat of arrest if they travel abroad is much more serious. Since Israel has not signed the treaty establishing the ICC, the request looks to many like another attempt by officious bureaucrats to drum up questionably legal pretexts to trample on national sovereignty.
Fans of international law may hail the ICC action as the next step toward establishing a legal regime to govern global affairs, but the warrant request is much more likely to be remembered as the Pickett’s Charge of their pet theories. Ironically, Secretary of State Antony Blinken was the one to expose the highwater mark when he indicated to the Senate Foreign Relations Committee on Tuesday that the Biden administration would not oppose congressional sanctions against the ICC. If even liberal internationalists will not defend institutions like the criminal court, their influence will shrink considerably.
Respect for the law of nations has long been part of the American tradition. When the French revolutionaries demanded in 1793 that the United States honor the 1778 Franco-American treaty and declare war on Britain, Thomas Jefferson and Alexander Hamilton argued in cabinet meetings over whether the law of nations required the United States to honor the request. This "law" was a hazily defined custom though, so American diplomats spent much of the next century drafting arbitration agreements to settle disputes with countries such as Great Britain.
During World War I, liberal internationalists like Woodrow Wilson argued that these customs and bilateral agreements were insufficient. They hoped the League of Nations would codify international law, resolve disputes between countries, and thus prevent another major war. That effort failed, but during World War II Franklin D. Roosevelt tried again. The United Nations was his crown jewel, and many Americans hoped the United Nations, the World Bank, and the International Monetary Fund would address the root causes of war and ultimately make it obsolete.
The Cold War ended this dream almost immediately. The Soviets briefly boycotted the Security Council, but after the Americans snuck through a resolution defending South Korea from a Communist invasion, the Soviets realized the importance of using their veto. For the rest of the Cold War, the United Nations was a battleground for the free world and its enemies. The Soviets and their allies passed a notorious General Assembly resolution declaring that Zionism is racism, and one week before the Soviet Union imploded, the United States led a successful effort to repeal it.
When the Soviet Union collapsed and the United States appeared to have no remaining rivals, many liberals thought their ambitions for international law were finally within reach. American lawyers flocked to the United Nations and filled the international legal industry, which grew tremendously as a series of treaties outlawed chemical weapons, established the ICC, and made symbolic agreements about global warming, among other things.
Not all Americans shared this enthusiasm. Republicans led by Henry Cabot Lodge torpedoed the League of Nations treaty because they did not want to cede American sovereignty to any international body. Others dismissed the idea of international law altogether: When he taught a survey of international politics at Harvard, Henry Kissinger brought in a guest speaker for the sessions on international law, explaining, "I do not wish to give a lecture about something that doesn’t exist." Many Americans have feared the intrusion of international busybodies into American affairs, and the Senate has not ratified most of these new treaties.
Few of these institutions have had much effect on the real world, but liberals held out hope that they could at least browbeat small countries into compliance while they waited for the Democrats to ratify these treaties. The ones that have created the most benefit tend to focus on mundane issues, like setting technological standards. The major exception was the World Trade Organization, which reduced global trade barriers and helped lift more than one billion people out of extreme poverty between 1990 and 2015. This system of relatively free global trade saved hundreds of millions of people from horrid conditions and was one of the glories of the old Pax Americana.
As America’s enemies gained strength, they exposed the weakness of the international legal regime. During the 1990s, international legal beagles mostly fretted about "rogue states" like North Korea and Iran violating international treaties about nuclear weapons. America’s stronger adversaries have recently gotten into the game too: China joined the WTO and systematically cheated on its trade commitments, driving many American manufacturers out of business. Russia protected Syrian dictator Bashar al-Assad when Assad used chemical weapons on his own people, then used its own chemical weapons against dissidents in Europe and Ukrainians. Neither Beijing nor Moscow respects older conventions, such as territorial sovereignty. Beijing ignored a 2016 arbitration ruling that its territorial claims in the South China Sea were meritless, and Russia is subjugating as much of Ukraine as it can.
America’s adversaries make a mockery of international law, but they still think it has some value. China seeks to dominate international bodies that set technological standards, such as the International Telecommunication Union, even while Beijing and Moscow stymie Western initiatives in the Security Council.
Conservatives usually view international legal organizations with suspicion or boredom. When the ICC attempted to investigate American forces in Afghanistan even though the United States hadn’t ratified the treaty, the Trump administration sanctioned the officials involved in the attempted power grab.
But Blinken showed this week that even American liberals are souring on the international legal community. The Americans and Europeans who dominate many international bodies are likely to carry on their work. But without the backing of the liberals, who have long been their main supporters, it is not clear if anyone will notice.