This idea is an old one. The ancient Greeks came up with this: Isonomia (ἰσονομία, from the Greek ἴσος isos, "equal," and νόμος nomos, "usage, custom, law,"). It can be translated as “equality of law”. Isonomia can be found in the German Grundgesetz which turned 75 this week. Our Basic Law is actually something I am glad about. The “fathers and mothers” of the Basic Law came together in Bonn, 1st September 1948. Only 4 of the 65 members were women. Their names are: Helene Wessel, Elisabeth Selbert, Helene Weber und Friederike Nadig. They were the advocates of Art. 3, 2, German Basic Law:
Article 3
[Equality before the law]
(1) All persons shall be equal before the law.
(2) Men and women shall have equal rights. […]
“The German Grundgesetz is a masterpiece of Western constitutional history. It bears the scars of 150 years of often violent political conflicts, but also the hopes of many for an open and free society. So far, it has largely fulfilled the aspirations of its founders” (https://www.martenscentre.eu/blog/75-years-of-german-grundgesetz/).
The same idea can be found here, too.
Universal Declaration of Human Rights, Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
I am not a lawyer. Although I studied International Law for three semesters, I am certainly no expert. But I do believe in this millennia-old idea. No one is above the law. Except the prosecutor of the International Criminal Court (ICC), since he interprets the law as he pleases.
As far as I understand the Rome Statute, which is behind the ICC, there are some preconditions to the exercise of jurisdiction:
"Article 12 : Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the
Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction
if one or more of the following States are Parties to this Statute or have accepted the
jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration of
that vessel or aircraft;
(b) The State of which the person accused of the crime is a national. […]"
So one precondition is dealing with “States”. What is a state? For me as a person with an academic degree in Political Science it is clear. The decisive factor is the internationally recognized definition of Jellinek:
“A state has […] three elements – people, territory and political power.”
But following the ICC prosecutor this is obviously not a precondition to his latest decisions. He decided to follow a different interpretation. His latest decisions about the applications for arrest warrants were not dealing with a “State", since one party is no state.
The same is true when it comes to questions of admissibility.
Article 17:
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine
that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction
over it, unless the State is unwilling or unable genuinely to carry out the
investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and
the State has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the State genuinely to
prosecute; […]
Again – we are dealing with a "State" here. Plus admissibility is only given if there is no jurisdiction or prosecution. But Israel has jurisdiction and there will be prosecution in case Israeli prosecutors and judges will decide so. To me and my understanding of the situation, the prosecutor as well as the ICC are not in charge for any questions of the Israel-Hamas war.
Beside world politics and injustice, I was dealing with waiting again. But on Friday, finally, I heard back from one publisher and it looks very much like progress. At least on one front. So, I hope to get my study published very soon, since now its all up to me and I can work in my pace 😉
On Wednesday I attended a talk organized by my colleagues from the Moshe Dayan Center, Tel Aviv University. It was a very intense discussion which culminated in one question:
When will the international community finally stop Iran?
Unfortunately, it does not look like anyone is willing to get active in the near future.