Hungary announced its intention to withdraw from the International Criminal Court (ICC) at the beginning of April, an announcement that coincided with Israel Prime Minister Benjamin Netanyahu’s visit to the country’s capital. The visit took place amid a pending warrant for Netanyahu’s arrest issued by the ICC last November. The ICC’s Rome Statute obligates all member states to arrest individuals against whom the Court has issued warrants. Hungary’s decision to withdraw from the ICC shows that the Hungarian government intends to circumvent its international legal obligation to enforce the Rome Statute against Netanyahu. Hungarian Prime Minister Viktor Orbán justified the government’s position, stating that Hungary’s withdrawal from the ICC was because the ICC was “no longer an impartial court… but rather a political court.”
One category of observers have pointed out that Hungary’s withdrawal does not relieve the government of its international legal obligation to arrest Netanyahu. Another category of observers have bemoaned Hungary’s decision as a blow to the shared quest for justice and a break with the values and principles behind international institutions. This category of people includes Oscar-winning Palestinian director Basel Adra, who has called on the European Union to condemn Hungary’s decision to withdraw from the ICC “if [the European Union] cares about protecting international legal order.” It is important to note the difference between these categories of observers.
The first category condemned Hungary for refusing to honor its international legal obligations to which it has already agreed. The second category, on the other hand, condemned Hungary’s reasoning and the decision itself. The first category of observers is correct that the Rome Statute only releases a withdrawing state party from its ICC obligations after one year has elapsed since it first declared its intent to withdraw, and thus Hungary should be punished for its failure to meet its obligations. The first category is also correct in that Netanyahu’s arrest warrant was fully justified, and Hungary’s failure to heed that warrant is not excusable. However, the second category of observers attacks Hungary’s decision with a moralistic arrogance that, hypocritically, invokes the international order while disregarding the historical development of that order.
International treaties and conventions connecting the globe are based on states’ consent and agreement, acknowledging that states may choose to opt out of a treaty’s terms. The Rome Statute, for example, includes a withdrawal procedure, as do many major treaties ranging from climate change agreements to chemical warfare conventions. Hungary’s withdrawal is an important reminder that we cannot brow-beat states into prioritizing international interests over their own. Instead, we must convince states that international cooperation is, in fact, in their best interest.
MODERN INTERNATIONAL SYSTEM: EARLY BEGINNINGS
To better understand why it’s crucial to convince states of the benefits and virtues of international cooperation, we must revisit the principle of state sovereignty. The 1648 Peace of Westphalia were two treaties signed by the Holy Roman Emperor, the France and Sweden kingdoms, the United Provinces, and various state rulers under the Holy Roman Empire.
Before the Peace of Westphalia treaties were signed, the feudal system, the Pope, and the Holy Roman Emperor restricted European rulers’ ability to interact with other states. The Peace of Westphalia—and, more importantly, successive peace treaties in the following years—freed European rulers from these influences by introducing the principle of state sovereignty, which is the idea that each state possesses supreme and exclusive authority within its own territory regardless of its size or power. This principle enabled states to create enforceable treaties and to freely negotiate with each other, much the same way that individuals form contracts. States could choose whether to sign a treaty and could refuse to sign it over terms that the state found objectionable. For this reason, treaties that sought to amass signatures from large groups of states had to make considerable concessions to entice those states to sign.
Early state sovereignty principles laid the groundwork for international order as we know it today, but with a few changes. The nineteenth-century German philosopher Hegel took the notion of state sovereignty a bit further, elevating the state to a deity-like entity, which he exemplified by declaring that the state was “der Gang Gottes in der Welt,” translated by some to mean, “the March of God through the world.” Similarly, the French Revolution personified the state by ascribing to it interests and desires, distinct from the people ruling it. Later during the nineteenth and twentieth centuries several wars—including the First and Second World Wars—entrenched the principle of state sovereignty as something worth dying over. Over time, states became like billiard balls on a billiards table: each with equal weight, free to bounce against each other, but uninfluenced by any outside force.
State sovereignty concepts evolved again when radical changes during the twentieth century restricted the principle of state sovereignty. International human rights later saw states agree to universally condemn practices such as racism and slavery, and protect rights such as freedom of expression and the right to life. International investment law then allowed investors to challenge states for failing to meet their obligations regarding investors’ investments. International criminal law began prohibiting acts such as genocide and torture, and regulated the conduct of war. In all three fields of law, states could now be punished for actions committed within their own territories—a direct violation of the principle of state sovereignty. However, all three fields of law were also created by states, who voluntarily weakened their power under a shared belief that collective action and international cooperation could be beneficial both for themselves and the international community. That said, states did not disclaim their Westphalian inheritance by altogether by implementing new areas of law. Rather, states signed onto treaties and propped up international organizations that they believed best represented their values or served their interests. By doing this, states avoided surrendering their sovereignty entirely. Now, they could protect their state interests in situations where global community interests conflicted with their sovereign interests.
The current system of consent to international law ensures that the most powerful states cannot dominate international relations on their own terms but must compromise with equally powerful nations, enticing smaller states with concessions to create treaties and international legal norms—if you’re not convinced of this, look at the United Nations Security Council, whose five permanent members possess a highly conflicting set of interests and values. This system of consent also ensures that international organizations listen to their members in order to retain them.
In summary, the modern international order was created by the whims of states, surviving on those very whims today. The ideas of consent and self-interest are undeniably at the core of modern international law.
CONCLUSION
We should not delude ourselves into thinking that Hungary’s withdrawal runs contrary to the modern international order because states only cooperate on the international stage insofar as doing so aligns with their interests and values. The current international order is built on this reasoning. The claim that Hungary should continue to uphold the ICC’s founding treaty “because it’s the right thing to do” is misguided. Not only does this claim offend the idea of consent and state sovereignty, but it reeks of paternalistic neocolonialism. After all, how dare we dictate what is in states’ best interests, or compel them to act against their ideals and interests for the sake of “the international legal order?” The current international order has always been one where the watchmen watch themselves. If states are to concede more of their sovereignty in the coming decades—resisting the inertia of a centuries-old system of international relations that empowered them above all else—the international community must avoid berating states for not disclaiming their Westphalian inheritance when the reasons for disclaiming such power are uncompelling.
Hungary is also not the first country to decide that its interests no longer align with the international community’s long-championed ideals. For decades, there have been academic and political movements that have challenged the international order for promoting the morals and agendas of a select few states, rather than reflecting the beliefs of the world at large.
The ICC has also been heavily criticized for alleged bias and lack of transparency, traits which constitute self-inflicted harm by the ICC on its own legitimacy. An international organization that cannot convince states of its ideals cannot be said to be a unifying international organization at all. The ICC must do a better job aligning states with the organization’s mission and with member states’ interests.
Please do not interpret this commentary as categorically deriding globalization or international organizations, or supporting the views or policies of any one state or organization—including Hungary or Israel. International cooperation has produced some of the most dramatic achievements of humanity, such as reducing acid rain and eradicating smallpox. These achievements would not have been possible without international cooperation. Regardless of its flaws, the ICC has played an important role on the global stage. It has worked to achieve justice by convicting international war criminals and to enforce international treaties for decades. This commentary instead highlights a valuable lesson we must take from Hungary’s withdrawal from the ICC: we must do better to convince states that international cooperation will not just serve the interests of the international community—or those of certain countries—but will also benefit each country’s individual interests, too.
