The word desuetude is a legal term which comes from the Latin desuetudo meaning “the condition of not being in use or practice.” It refers to laws which haven’t been repealed and may still be on a nation’s statute book. These laws, owing to their long and continued non-use render them invalid. By invalid I mean that the courts will no longer punish the transgressors. Another reason for using this legal term desuetude in relation to a law is if there has been a notorious violation of the statute for a long time.
The Geneva Conventions of 1949 on which international law was originally based were introduced above all to protect innocent victims of armed conflicts. The need for the Conventions followed on from the heinous crimes committed by the Nazis during World War 2. In 1998 the Rome Statute was introduced and 60 countries signed up to it. This Statute was behind the establishment of the International Criminal Court (ICC) in 2002. Its purpose was to investigate and then, with sufficient evidence available, prosecute war criminals.
On May 24, 1999 Slobodan Milošević, the former President of Serbia, was indicted for war crimes during the Kosovo War. He was hunted down at the bequest of the USA and brought to face trial at the International Criminal Tribunal for the former Yugoslavia (ICTY.)
On March 17, 2023 the ICC issued warrants of arrest for President Vladimir Putin and Ms Maria Lvova-Belova. It is alleged that Putin and Lvova-Belva, the Russian Commissioner for Children’s Rights, unlawfully transferred children from Ukraine to Russia. President Putin has described his indictment as meaningless and his description, if he means by this that no court will ever be in a position to punish him even if he’s guilty, has some justification.
As we wait with bated breath for the ICC to decide whether or not to indict Prime Minister Benjamin Netanyahu and members of his government for war crimes one has to wonder whether any court or any institution which has no power to force the implementation of their judgements and which appears to be highly selective when choosing who to indict, serves any purpose and consequently whether their laws have become obsolete. Netanyahu has described the ICC investigations into allegations against him and members of his government as “outrageous.” It would appear that more than a few US Senators have brought pressure to bear on the ICC not to indict Netanyahu by sending warning letters to its members.
Even with the best will in the world it is difficult not to regard what is happening in Gaza as anything else but genocide and both the Rome Statute and the Geneva Conventions would appear to support the indictment of Netanyahu and his government. Netanyahu has labelled the possibility of being served with an arrest warrant an “antisemitic hate crime” and asked the “leaders of the free world to stand firmly against the ICC’s outrageous assault on Israel’s inherent right of self-defence.”
The White House Press Secretary Karine Jean-Pierre stated “we’ve been really clear about the ICC investigation, that we don't support it, we don't believe that they have the jurisdiction," On this basis shouldn’t one question the jurisdiction of the ICC to issue warrants of arrest for President Putin and Maria Lvova-Belova or anyone for that matter?
Finally let us look briefly at the United Nations. There are 193 countries who are members of the UN and yet only one of the five permanent members (USA, UK, France, Russia, China) are needed to veto any resolution calling for a ceasefire in Palestine or anywhere else or to bring the perpetrators of war crimes to justice.
As of 2013 Israel had violated 28 resolutions of the United Nations Security Council. These resolutions are meant to be legally binding on member states. Western nations are often keen to promote Representative Democracy as the best political model available. When one UN member can block the judgement of the other 192 UN member-States this can hardly be called representative or democratic. The UN needs to be truly democratic if it is to serve any purpose in protecting defenceless people from war crimes.
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