You probably assume that you know what the word “expat” means. The writer Lucy Mushita first heard that word from European and American professionals who had come to work in her home country (Zimbabwe); they used it to describe themselves. She looked it up in a dictionary and found out that “expat” designates someone who goes to live or work in a country that is not his or her own. Later, however, she discovered that the word had a more limited scope than what its dictionary meaning suggested. “When I arrived in France and introduced myself as an expat, people looked at me with wide eyes,” she describes in her latest book Expat Blues. “They asked me if I’d fled poverty, misery or war, and I replied that I hadn’t. I was an expat. I was an expat who had followed her husband to France. But I realized that the word didn’t work for black people in the Western world.”
One dirty little secret about international law as we know it today is that it works in a quite similar fashion. It is largely egalitarian in its surface structure. For instance, treaties typically refer to “the High Contracting Parties” without distinguising between powerful and less powerful countries. But the deep structure of international law is often premised on the assumption that rules of international law are not role-reversible. We now know with the support of archival evidence (but we always suspected it) that bilateral investment treaties were never meant to work in an egalitarian manner despite their egalitarian language: the capital was expected to flow from the Global North to the Global South, not the other way around, and only the Global South countries were supposed to be on the receiving end of the arbitration commitment (see among others, Taylor St John). Likewise, most Western countries signed up to the Rome Statute of the International Criminal Court on the assumption, largely vindicated so far, that the Court would unlikely try their nationals (see Beth Simmons and Allison Danner). Powerful Western countries or their close allies can and sometimes do act in a “roguish manner” (as Jacques Derrida observed in Rogues: Two Essays on Reason, pp. 96-97), but they will never be called “rogue states”, because that label is reserved for Global South countries. Universal jurisdiction is promoted when it is used to prosecute nationals of Global South countries, but it is abandoned as intolerably disruptive when attempts are made to hold Dick Cheney, Donald Rumsfeld, Colin Powell, Henri Kissinger or Arial Sharon accountable (see Máximo Langer). The arrest warrant that the International Criminal Court issued against Vladimir Putin was unanimously applauded by Western countries, but the United States vehementy attacked, and others have felt reluctant to show the same entusiasm with respect to, the arrest warrants that the Pre-Trial Chamber I of the International Criminal Court issued on 21 November 2024 against Benjamin Netanyahu and Yoav Gallant for crimes against humanity and war crimes in Gaza. In what appears to be a truly embarrassing vole-face, the French government, which celebrated the arrest warrant of the International Criminal Court against Putin as “fight against impunity”, is now arguing that Netanyahu would be entitled to immunity. The list of examples can be extended endlessly.
This secret is sometimes made public by Western public officials. The EU High Representative for Foreign Affairs and Security Policy Josep Borrell’s infamous “garden v. jungle” metaphor immediately comes to mind. Equally if not more remarkable was the opinion piece written for The Guardian by a senior British diplomat which stated in no uncertain terms that “when we are operating in the jungle, we must also use the laws of the jungle”, which apparently include “force, pre-emptive attack, deception.” But in general, this secret is not supposed to be openly publicized. As Hedley Bull stated in his Anarchical Society, “to make explicit the full extent of the special rights and duties of the great powers . . . would be to engender more antagonism than the international order could support.” (p. 221).
There may be nothing remarkable in such a state of affairs. As Guy de Lacharrière – a former legal advisor at Quai D’Orsay – once observed:
In its search for the closest possible correspondence between international law and its own convenience, a government does not consider it automatically appropriate that the rule valid for itself should also be valid for others. Neither spontaneously nor primarily does it think in terms of general rules, and nothing is further from its preferences than the very idea of the automatic and necessary generality of rules applying to the conduct of all states. (p. 85)
If all governments proceed in this manner, reciprocity can only come into play “out of tactical resignation to the inevitable” (Guy de Lacharrière, pp. 83, 87). Louis Henkin explains what is “inevitable” about such resignation:
To promote its own independence and security and the inviolability of its territory, to control the behavior of other governments, a nation may have to accept corresponding limitations on its own behavior. For the confidence bred by law, one pays the price of not being free to frustrate the expectations of others. (pp. 29-30)
Both Guy de Lacharrière and Louis Henkin make eminently reasonable points. Two important things are, however, lacking in their analysis. One is the time horizon of governments. By assuming that governments are prepared to accept “gratification deferral” (Thomas Franck) and sacrifice their immediate goals to what Arnold Wolfers insightfully called in Discord and Collaboration (p. 73) “milieu goals” (in contrast to “possession goals”) – “goals pertaining to the shape of the environment in which the nation operates” (you forgo whatever gains you can get by breaching international law today in exchange of the environment of stability and predictability secured by international law) – Henkin overlooks the fact that most governments do not look beyond the time horizon of their current or prospective office. The immediate goals of a government are almost always likely to prevail in the contest against future gains for the country (mindful of Grucho Marx’ famous question – “What have future generations ever done for us?” – political leaders know that future generations tend not to vote in current elections). Lacharrière and Henkin are also oblivious to the power differentials in the international society. Every country may well desire to live in a world in which it can do whatever it takes to satisfy its immediate interests while the freedom of all other countries is limited by international law, but only powerful countries and their close allies can afford the luxury of actually living in such a world.
This is the world in which Israel, a close ally of Western countries, lives. Israel has been widely regarded as behaving in Gaza in blatant disregard of not only time-honored rules of international humanitarian law, but also of “elementary considerations of humanity”, secure in its conviction that the United States will never stop supporting it and will do everything to make sure that it is not held accountable. That world is the background against which the arrest warrants against Benjamin Netanyahu and Yoav Gallant should be assessed. Given that background, we can call those arrest warrants the Nicaragua moment for the International Criminal Court.
The case brought in 1984 by Nicaragua against the United States of America before the International Court of Justice prominently features in the collective memory of international law scholars as a moment of pride for their discipline. The Court’s “epoch-making” (Alain Pellet) judgment in that case is the go-to example (probably because we don’t have many others) which serves to show that “David can triumph over Goliath” (Alain Pellet) and that “justice is blind” to power differentials (Marcelo Kohen). That the International Criminal Court badly needed such a moment cannot be denied. The Court so far has primarily focused on “low-cost defendants” from “low-leverage countries” – to borrow the terminology that Máximo Langer used in connection with universal jurisdiction – and has been severely criticized for its bias against Global South countries. The arrest warrants against Netanyahu and Gallant mark the first time that high-level officials of a close ally of powerful western countries have been targeted by the Court.
The symbolic importance of this moment is not diminished by pragmatic considerations regarding the prospects of compliance even though the practical impact of the arrest warrants is not to be underestimated (according to press reports, even before the issuance of the arrest warrant against him, Netanyahu changed his initial itinerary which included a layover in Prague – capital of a state party to the Rome Statute – during a recent trip to the United States, fearing that the arrest warrant could have been issued secretly). What the arrest warrants against Netanyahu and Gallant immediately stand for is the powerful symbolic message that you cannot commit internationally prosecutable mass crimes and face no consequences just because you happen to be a powerful state or your Dad owns the shop. They also achieve something broadly falling under “the expressive powers” of international law through “attitudinal signaling” on behalf of the international community (Richard McAdams). Last but not least, those arrest warrants compellingly illustrate what Michel Foucault described as “the tactical polyvalence of discourses”, something that powerful countries and activists seeking to hold them accountable should constantly bear in mind. As Foucault explained:
[W]e must not imagine a world of discourse divided between accepted discourse and excluded discourse, or between the dominant discourse and the dominated one; but as a multiplicity of discursive elements that can come into play in various strategies. . . . Discourses are not once and for all subservient to power or raised up against it . . . We must make allowance for the complex and unstable process whereby discourse can be both an instrument and an effect of power, but also a hindrance, a stumbling-block, a point of resistance and a starting point for an opposing strategy. Discourse transmits and produces power; it reinforces it, but also undermines and exposes it, renders it fragile and makes it possible to thwart it. (pp. 100-101)
Precisely because international legal discourse – even when deployed by powerful countries – cannot avoid the egalitarian language (at the very least, for appearance purposes), it can always be turned and used againts those countries. That is one of the few weapons that international law offers to the weak in what is otherwise a “head I win tail you loose” game in the hands of powerful countries.
