International Law, National Self-Interest or Neither?

European countries’ decision to sanction Russia, their main energy supplier, has consistently been defended based on the principle that they must uphold the “rules-based international order”.

In a statement defending the sanctions in February of 2022, the German foreign minister Annalena Baerbock said that “this war is an attack against all the values of a rules-based international order” and that “we are standing up here for international law and international rules”.

In a communiqué defending the sanctions in May of 2022, G7 foreign ministers stated that “Russia has blatantly violated the rules-based international order, international law and humanitarian principles and it has breached universally agreed and legally binding fundamental principles”.

And in an article defending the sanctions in July of 2022, the EU’s foreign policy chief Joseph Borell noted that “allowing Russia to prevail would mean allowing it to destroy our democracies and the very basis of the international rules-based world order”.

Now, the “rules-based international order” is a rather slippery concept. One can distinguish two broad definitions: a charitable one, and a cynical one. The charitable definition is that it refers to the rules, norms and laws laid down by various multilateral organisations, such as the United Nations, the World Trade Organisation and the International Monetary Fund. The cynical definition is that it refers to U.S. global domination. (The truth is probably somewhere in between.)

Under the charitable definition, the International Criminal Court in the Hague represents a key element of the “rules-based international order”. It is therefore no surprise that European countries applauded the ICC’s decision to issue an arrest warrant for Vladimir Putin. German Chancellor Olaf Scholz said the ICC is the “the right institution to investigate war crimes”, while the French government said “no one should escape justice”.

What is noteworthy is how France and Germany have responded to the ICC issuing an arrest warrant for Benjamin Netanyahu.

After initially stating that it would implement the court’s ruling, France subsequently backtracked, arguing that Netanyahu has immunity because Israel is not a signatory to the Rome statute. (This backtracking apparently followed an angry call from Biden to Macron.) Of course, if Netanyahu has immunity, as France claims, then so does Putin – since Russia is not a signatory to the Rome statute either.

Germany’s response has been similarly muddled. A spokesman initially stated, “I find it hard to imagine that we would carry out arrests in Germany” because of the country’s “historical responsibility”. (Germany apparently has a “historical responsibility” in light of the Holocaust but does not have one in light of Hitler’s invasion of the Soviet Union, which killed about 20 million Russians.) However, Baerbock subsequently stated that “nobody is above the law”. Friedrich Merz, who is likely to be the next German Chancellor, has previously suggested he would not implement the ruling.

So on the one hand, France and Germany are willing to sabotage their own economies by sanctioning Europe’s main energy supplier in order to uphold the “rules-based international order”. Yet on the other, they are not willing to say they will implement a simple ICC ruling, even though there is no economic cost to doing so and their refusal undermines the court’s authority.

It seems that France and Germany are neither upholding international law nor pursuing national self-interest. What they are doing remains unclear. My best guess is: what the U.S. tells them.