Pearls and Irritations

Imagine… the state court has handed down an injunction to arrest certain individuals in your community for alleged crimes. Until now, the police have unfailingly done their duty and arrested individuals when instructed to do so by the court. But this time, they refuse to make these arrests. They disagree, they say, with the court’s decision, so they refuse to uphold the law on this occasion.

The community is shaken and alarmed. They say, “It is not up to the police to decide! The judges have all the evidence before them, and it is their role to decide who should be arrested and held to trial, not the police! The police must do their duty whether they agree or disagree. To do otherwise would cause a descent into lawlessness! If those arrested are innocent, let them demonstrate their innocence at trial!”

Suspicions of corruption mount. Why should the police suddenly refuse to even arrest certain individuals? What is so special about these individuals that places them above the law? The law has never been made conditional on whether the police agree with the court or not, so why should that be the case now?

The police’s refusal to arrest these individuals sets a precedent. It has been discovered that some of the individuals the court seeks to arrest are members of the mafia, and mafia leaders are paying and blackmailing police in order to avoid arrest.

Realising that the police force is corrupt, other gangs become emboldened. Armed with the knowledge that, with enough payment or blackmail, the police are unlikely to arrest them, they act with impunity. Crime rates surge and before long, the community is ruled entirely by gangs.

Civilians seek, in vain, to gain protection by siding with whichever gang is the strongest at the time. But doing so proves too risky, as those civilians then become targets of rival gangs. The community suffers daily and longs for the days of law and order. The moment when the police refused to uphold the court’s arrest warrants was the beginning of the end of the community as they knew it. As they can see it even more clearly now in hindsight, recriminations begin. “Why did we not put more pressure on the police to make those arrests? We should have come down on them like a tonne of bricks! We should have done more to make them uphold the law!” But these recriminations come too late. The downward spiral now has an momentum that cannot swiftly be stopped.

Although the above is a hypothetical scenario, the world is currently at the most pivotal part of the story, and on a global scale. The International Criminal Court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister, Yoav Gallant, as well as Hamas’ military leader, Mohammed Deif, for alleged war crimes and crimes against humanity in Gaza. (Israel assassinated the other Hamas leaders.)

Governments which are signatories to the ICC are obliged to arrest individuals for whom the court has issued arrest warrants. Yet, shockingly, several governments have debated whether they would fulfil their obligation if Netanyahu and Gallant were to enter their territories. (There is no debate, it seems, as to whether Deif would be arrested.) It is a matter which should not even be debatable.

The ICC is tasked with the job of any other court – that is, to review the evidence before it and to make an impartial judgment as to whether there is enough evidence to warrant arrests. The cases would then be tried in court. Yet the governments proving reluctant or recalcitrant have not set up an alternative, superior judicial system which has reviewed the evidence and come to a wildly different conclusion. They do not purport to have reviewed the evidence at all. The US — the country most outraged by the ICC’s arrest warrants — has so far provided the following reasons for believing states should not fulfil their obligations on this occasion:

1. That there are “process errors” that led to the decision. (Although the White House spokesperson did not specify what the alleged errors are.)

2. That the ICC does not have jurisdiction over the case because Israel is not a party to the ICC. However, as Palestine accepts the court’s authority and the alleged crimes occurred in Palestinian territory, the court patently does have jurisdiction.

3. That they believe the court to be biased against Jewish people.

Leaving aside the fact that Israel does not represent Jewish people any more than ISIS represents Muslims, those governments reluctant to fulfil their duty have not provided any evidence for their claims. The unstated assumption is that any criticism of Israel is, a priori, antisemitic. In any other country, such a statement would be pure nonsense. For instance, I can criticise the Australian Government for its policies regarding its treatment of its Indigenous people without being accused of being un-Australian or biased against Australians.

The recalcitrant governments are likely aware that allegations of antisemitism against anyone who dares to criticise Israel are nonsense, but they are unlikely to state the real reason for being unwilling to fulfil their legal obligations. The real reason, of course, is that they are worried that the US may punish any government that abides by its obligations to the ICC.

So here we are, at the precipice. Will “might is right” continue to rule the world, or will countries respect the rule of law and allow the legal system to proceed, whether they agree with the court’s judgment or not? It’s easy to fulfill one’s obligations when the law comes down on those with little power. But when the law comes down on the powerful, as it has now, that is when governments around the world are really put to the test. This is the time when we, as citizens, must apply all the pressure we can on our governments to uphold the law at all costs.

If we fail to do so then, sooner or later, we will all be Palestinians.

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