This week’s political rows in Leinster House are, in the best traditions of a famous Cork newspaper, likely to be about things that the Irish Government and Irish state has absolutely no control over, or power to affect change about.
In 1898, the sadly defunct Skibbereen Eagle sternly warned Nicholas II Romanov, sometime Tsar and Emperor of all the Russias, that it was keeping a close eye on his conduct, and that of “all such despotic enemies — whether at home or abroad — of human progression and man’s natural rights which undoubtedly include a nation’s right to self-government.”
The editorial went on to proclaim the policy of the Skibbereen Eagle in firm terms, lest the Tsar be left in no doubt as to the sheer scale of the opposition his policy in relation to China had aroused:
‘Truth’, ‘Liberty’, ‘Justice’ and the ‘Land for the People’ are the solid foundations on which the Eagle’s policy is based.”
History, sadly, does not record the Tsar’s reaction.
Yesterday, the Tánaiste tried to head off at the pass an opposition motion, likely to be voted on this week, seeking to refer Israel to the international criminal court over its war with Hamas in Gaza:
My statement on the investigation by the International Criminal Court into the situation in Palestine. pic.twitter.com/Veg7PgAdOZ
— Micheál Martin (@MichealMartinTD) November 12, 2023
Ireland is, of course, a proud member of the International Criminal Court, which sits in the Hague and was brought into existence by the Rome Statute of 1998. The remit of the ICC is to try and convict those accused of war crimes. The ICC is part of what you might call the broad architecture of international law.
The problem, really, is fairly simple: International law is more a concept than it is a reality, and Ireland’s stern lectures, as a result, bear all the hallmarks of the Skibbereen Eagle’s infamous editorial.
Compare international law, for example, to the laws against burglary here in Ireland. Burglary is against the law, and if you break into somebody’s house and steal their goods, the Gardai will seek to arrest you, have you brought to court, and put in prison if a Judge decides your crime warrants that. (Though in reality, a suspended sentence is about the worst you’ll get, so burgle away).
The point being that the Gardai, in pursuit of enforcing the law, are empowered to come and take you away for questioning by force. The law is backed up by the use of force to make sure you obey it.
That is not true of international law, in almost any circumstances.
Israel, for example, is not a member of the ICC and does not recognise that it has any jurisdiction over Israeli citizens. Lest you think this is some example of Israeli fecklessness, recall that Israel shares this position with the United States, Russia, China, India, Turkey Malaysia, Saudi Arabia, Pakistan, Cuba, and, amongst a whole load of others, the Pope himself as sovereign of the Vatican City.
In total, states representing slightly more than half the world’s population either flat out reject the ICC (all the countries and more, listed above), or have never gotten around to ratifying it – a list of countries that includes Iran, Egypt, Syria, and a bunch of other Arab states who signed up to it mainly to put pressure on Israel, but then mysteriously never got around to ratifying its jurisdiction over their own citizens.
Intriguingly, the Palestinian Authority have signed up to the ICC, which is the basis for the ICC claiming authority in Gaza. But there’s a problem there: The Palestinian Authority is first, not a state, and second, has no sovereignty over Gaza. Technicalities, you might argue, except for this: Ireland doesn’t recognise Palestine as a state. So who, are we arguing, had the legal authority to sign that land up to the jurisdiction of the ICC?
But John, you might well say: Just because a rogue state like Israel or the United States hasn’t ratified the International Criminal Court doesn’t mean that they shouldn’t be prosecuted for crimes? Well quite: But the problem is a basic one – who is going to enforce that?
Let us say, hypothetically, that the International Criminal Court was to indict an Israeli, American, or Chinese general for war crimes. What then? Who arrests the accused person and brings them to trial? Are we going to send Irish troops into Israel, or Austin Texas, or Shanghai, to bring the wrongdoer to justice?
Or are we, perhaps, just going to fume and seethe about the avoidance of “justice”?
Some academics have proposed an alternative solution that appeals to some people who want to believe it possible: A country, they say, that refuses to hand over an indicted person should be subjected to economic sanctions. Further, that person will simply have the threat of arrest hanging over them if they ever visit a signatory country. It’s not justice, they say, but it’s something.
Problem is, it will never happen: Does anyone think that the United States, China, India, and all the rest are going to stand idly by and accept the Irish Government placing economic sanctions on a country for refusing to recognise a court that they, also, do not recognise?
The bottom line is this: It’s going to be a debate about nothing, because ultimately, international law doesn’t really exist in the way domestic law does. If you want to call something a law, there needs to be a convincing mechanism to enforce it.
Ireland, as a neutral country, would presumably abhor the idea of enforcing international laws by force. Indeed, that’s what we did, when we either opposed, or declined to participate in, British efforts to defend international law in the Falklands, or American efforts to uphold international law in Iraq, or NATO efforts to uphold international law in the Balkans. All of those countries might well be terrible hypocrites when it comes to what laws they choose to enforce. But so, I’m afraid, is little old Ireland.
They’d really be better off debating housing, or something useful, this week. This is grandstanding, and a waste of time.