I visited a very special place some weeks ago – the place where democracy was born and our understanding of law has its origins: Athens.
The ostracism (Scherbengericht) is a well-known political procedure to remove disfavored or overly powerful citizens from the political life of the city. The term is derived from ostracon (τὸ ὄστρακον), clay shard, as fragments of clay vessels were used as “ballot papers”. The participants carved the names of the people to be banished into the shards; once the vote had been taken and counted, the most named person was banished for ten years. The expelled person kept their property; and if they returned later, they could also exercise their civil rights in office again.
The “ballot papers” and the instrument used to cast the vote have survived to this day. Simply incredible!
Of course, the procedure was not fully developed and far removed from our current understanding of the law, but I still find it more than impressive how people were able to do justice and that banishment could affect anyone. Back then - at least in terms of the idea - no one was above the law.
Today it's different! I already made it clear in my post
that I am of the opinion that there are some people who are above the law. For example, the chief prosecutor of the ICC. By issuing arrest warrants against Israeli Prime Minister Netanyahu and Defense Minister Gallant, who has since been dismissed, the ICC's chief prosecutor has not only damaged the ICC itself, but also international law - at least in the view that I hold.
The first reason for this is that a court must clarify whether it actually has jurisdiction before it takes action. If a court does not have jurisdiction, it cannot open proceedings, hear cases or make decisions. The ICC does not have jurisdiction in the alleged case. Israel has never submitted to the International Criminal Court - nor have the USA, India, Russia, China, Turkey, most Arab states and many South American states. This therefore shows that acceptance of the International Criminal Court is not particularly high worldwide. Furthermore, it calls into question the functionality of the underlying international law if it does not apply internationally - the general and equal validity and applicability of the law cannot be effective if it applies to some and not to others.
But why is a court that has no jurisdiction at all dealing with the case?
Because, so the argument goes, the events taking place in Gaza are happening in a member state. But as a historian and political scientist, I have also read Jellinek. So I know what statehood means. I since I did not quote the text in my earlier post, I am quoting it now. Jellinek, G. (1929): Allgemeine Staatslehre, Chapter 13, first published in 1900 and still binding today:
“The legal status of the elements of the state.
1. the territory of the state
The land on which the state association arises denotes, in legal terms, the area in which the state power can develop its specific activity, that of ruling. In this legal sense, the land is referred to as territory. The legal meaning of territory is expressed in two ways: [...] positively, in that all persons within the territory are subject to the rule of the state.
2. the people of the state.
The people belonging to the state as a whole constitute the people of the state.
3. the authority of the state.
Every unit of purpose consisting of human beings requires direction by a will. This will, which provides for the common purposes of the association, which orders and directs the execution of its orders, constitutes the power of the association.”
For a state to be considered as such, it needs three elements: a state people, a state territory and a state authority. Gaza/Palestine does not have this, so it is not a state, but is nevertheless treated as such under the UN mandate.
And there is another point that makes the whole procedure wrong: the ICC is only allowed to intervene if the country in question does not have its own jurisdiction to deal with such proceedings. This means that in Israel, which in the past has consistently taken action against even the highest officials and put prime ministers, presidents or chief rabbis behind bars, there would be no intact court system that would be able or willing to legally deal with the events surrounding the Israel-Hamas war.
All these assumptions led to the ICC issuing arrest warrants against leading politicians of a democratic state for the first time in its entire history. - And this from a chief prosecutor who is himself facing proceedings because he is accused of sexual misconduct by one of his employees (https://www.tagesschau.de/ausland/europa/untersuchung-khan-strafgerichtshof-100.html).
In addition to all these terrible developments, there was of course a lot of follow-up work on my trip to Canada this week and now that the Totensonntag (Sunday of the Dead https://www.worldatlas.com/articles/what-is-totensonntag-in-germany.html) is drawing to a close, Christmas preparations are on the agenda.
I know that hardly anyone cares anymore - but I don't start the Christmas season until after the Totensonntag. For me, that's just the way it should be.