Daniel Warner
CounterPunch / December 6, 2024
Are we now entering a period where no laws exist? My lawyer friends keep telling me that there is a rule of law. They argue that the indictments of Donald Trump and Benjamin Netanyahu prove that the rule of law is effective. I doubt that since neither has yet to be punished nor have the indictments changed their behaviour. I challenge my legal friends by asking: What happens when continuing violations challenge the very existence of the rule of law?
Let’s start with Donald Trump. His indictments for attempting to overturn the 2020 election, illegally keeping classified documents as well as the obstruction of efforts to retrieve the documents have been dropped. Special counsel Jack Smith has thrown in the towel. He will also not continue his appeal against a ruling by a Trump appointed judge that he as a Special counsel was unlawfully appointed.
In addition, Trump’s electoral victory has suspended his New York hush money case. Probably, this case will be over as well.
The charges against Trump – four criminal charges, and so far thirty-four felony convictions – have not stopped him from being elected president of the United States.
How did he get off? Judicially, the Supreme Court’s decided last summer that presidents have a certain immunity for official acts while in office. Chief Justice Roberts wrote in the majority decision, “The president is not above the law,” Roberts stated, and then added, ‘But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”
Justice Sonia Sotomayor disagreed with the majority’s decision in a scorching dissent. Writing for the court’s three liberal judges, Sotomayor said the majority’s immunity ruling “makes a mockery of the principle, foundational to our Constitution and system of government that no man is above the law.” Her dissent argued that by forbidding the criminalization of a president’s conduct the majority of the Court placed the president above the law. She opposed the majority with unusual judicial vehemence; “Today’s Court … has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.”
More than just criticizing the majority’s opinion that places the president “above the law,” Sotomayor wrote, “The Court effectively creates a law-free zone around the President.” A “law-free zone” is a place where no law exists. There is nothing to go above.
“Law-free zones” also exist in places outside Washington. The International Criminal Court (ICC) issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu accusing him of war crimes and crimes against humanity in Gaza. (The ICC also issued a warrant for a leader of Hamas and previously for Russian President Putin.)
What was the reaction to the Court holding the Prime Minister of Israel guilty of violating international law? “Today is a dark day in the history of humanity, the international court in The Hague which was invented in order to protect humanity has become today the enemy of humanity,” Netanyahu declared, giving no legal justification for how he defends Israel’s actions nor any respect for the Geneva Conventions which define states’ obligations in times of conflict.
And the United States? [w]hatever the ICC might imply, there is no equivalence – none – between Israel and Hamas,” President Biden said supporting Netanyahu. “We will always stand with Israel against threats to its security,” he continued, with no legal reference as well. Always stand with Israel when the ICC has issued warrants for Netanyahu for his war crimes and crimes against humanity and the International Court of Justice has said that Israel is carrying out “plausible genocide”?
Does this mean that Israel is not only above the law, but that Israel’s actions in Gaza and Lebanon are part of a “law-free zone”?
The Geneva Conventions and International Humanitarian Law (IHL) are not only being violated in the Middle East. There are other regions of the world where there are egregious violations of IHL “There is ongoing murder, torture, and sexual violence against those who ought to be protected, and bombardment of establishments that must be respected,” Professor Andrew Clapham of the Geneva Graduate Institute recently wrote.” He continued, “We see repeated failures to respect schools and hospitals with devastating effects,”
More generally, Clapham argued in War (Oxford University Press), the act of war creates a law-free zone; “The idea of war often operates to legitimate something that would otherwise be illegal. Killing people is normally outlawed; destroying property is normally something that ought to be punished or compensated; seizing property is normally theft; locking people up should be justified through elaborate procedures. But when one can claim ‘there’s a war on’, the justifications for killing, destroying, seizing and interning apparently become self-evident.”
Are there no limits to what warring parties can do? Have war zones become “law-free zones”?
A recent example of Professor Clapham’s point about continuing violations of international law is the shipment of anti-personnel land mines from the United States to Ukraine. 164 states have currently ratified or acceded to a treaty banning the use of anti-personnel mines, including Ukraine. By using land mines, Ukraine is in clear violation of its treaty obligations. (The United States’ complicity in this violation must also be considered.)
Does the continuing violation of IHL and international law weaken it to such an extent that it loses its legitimacy? If there are daily violations throughout the world, what is the value of treaties and conventions when violators go unpunished with no change in their behaviour? (Putin’s reduced travel possibilities are not a fundamental change in his behaviour.)
What is the value of the rule of law today? If law is the gentle civilizer, in the Finnish legal historian Martti Koskenniemi’s popular use of the phrase, are we moving beyond gentility? Perhaps we are seeing more and more exceptional places like tax-free zones, freeports, special economic zones, foreign trade zones, or charter cities which should now be labelled “law-free zones.” (There are also “human-rights free zones” for stranded asylum seekers on Manus and Nauru.) All these places are exceptions from standard practices.
In many cases, the law is a fiction, in Lon Fuller’s phrase. When laws are continuously violated, with violators have no change of behaviour or punishment, do the laws actually exist? If the laws are not enforced, do they remain merely a fiction?
The concept of “law-free zones” shows the growing reality behind legal fiction. We are witnessing an increasing tendency within the U.S. and abroad for officials and companies to operate outside accepted legal norms. In terms of “law-free zones,” Giorgio Agamben’s “state of exception” is quickly becoming the new normal.
Daniel Warner is the author of An Ethic of Responsibility in International Relations. (Lynne Rienner); he lives in Geneva
