After deciding to flout an international arrest warrant against Benjamin Netanyahu, Hungary has become the first European country to announce plans to leave the International Criminal Court (ICC). This comes after president Viktor Orbán hosted Israeli prime minister Benjamin Netanyahu, despite the ICC issuing an arrest warrant for him in relation to war crimes in Gaza.
As a member of the ICC, Hungary is supposed to turn in anyone subject to such a warrant if they enter its territory. Instead, Orbán rolled out the red carpet.
Following the visit, a senior government official confirmed Hungary’s intention to leave the court. It will be some time before we know if it will see through on the threat because it takes at least a year to leave once a formal written notification has been sent but the signal itself is a landmark moment.
Hungary’s open repudiation of an important part of international law is further evidence of the tectonic shifts taking place in international relations.
Throughout most of the 1990s and early 2000s, much of western foreign policy was focused on creating institutional mechanisms aimed at preserving the liberal international consensus that emerged at the end of the cold war. The creation of the World Trade Organization (WTO) and the ICC were two of the most concrete manifestations of this ethos.
Both represent attempts to bring legal and judicial formality to international politics. Unlike its two ad-hoc antecedents – the international criminal tribunals for Yugoslavia and Rwanda – the ICC is a permanent court of justice. It is tasked with overseeing the criminal trials of people accused of involvement in serious crimes, such as genocide.
Even at the height of its popularity, the idea that international relations should be subject to more rules and enforcement by courts had its fair share of sceptics and detractors, especially among countries whose interests and power could be most severely curtailed by an effective international justice system.
The US, Russia and Israel had originally signed but did not ratify the Rome statute underpinning the ICC – and subsequently withdrew their signatures – while China and India never even signed the treaty.
European countries generally (and EU member states specifically) were always among the most supportive of the ICC. The continent has experience with perhaps the most important experiment in international criminal justice, the Nuremberg trials of Nazi crimes. This legacy has continued to feed European support for holding those responsible for aggression and atrocities to account by means of criminal justice.
Countries like Hungary, emerging from behind the iron curtain in the 1990s, were no exception. There was no ideological or practical reason to oppose the creation of the ICC.
If anything, countries hoping to join the EU saw it as beneficial to endorse the court. Other than Belarus and Azerbaijan, every European country has ratified the Rome statute, and none has left – until now.
EPA/Zoltan Fischer
The rise of kleptocratic authoritarianism in Hungary means its exit from the ICC should not be particularly surprising. Inside the EU, Hungary has consistently acted as a Trojan horse for the interests of authoritarian governments, most notably Russia, China and Serbia.
Its break with the values and principles that are supposed to be at the heart of the EU project goes substantially beyond support for international institutions and justice.
Consensus crumbles
But the broader international environment has also become less favourable to legalisation and judicialisation. Countries that previously feigned commitment to international law have become outright pariahs. The most obvious example is of course Russia, which is waging a war of aggression against Ukraine – a crime under the Rome statute.
More importantly, though, the US is increasingly turning its back on international rules. It is dismantling many of the international institutions it worked hard to establish.
Although Donald Trump might be wreaking the most havoc, the US already effectively pulled the plug on the WTO’s judicial appeals system under Barack Obama. Last year Joe Biden’s administration came close to imposing sanctions on the ICC for issuing an arrest warrant for Israeli officials, including Netanyahu.
Taken together, these developments leave the EU and a handful of other countries increasingly isolated in backing the ICC and other elements of the so-called “rules-based international order”. And while Hungary’s exit deals yet another blow, it’s not clear how deeply committed other EU member states are either.
Germany’s chancellor Friedrich Merz promised he would find a way to make it possible for Netanyahu to visit his country despite the outstanding ICC arrest warrant.
Hungary’s open defiance of its obligation to arrest Netanyahu has placed it in company of countries that wear their noncompliance with international law as a badge of honour. The experience of one of them is particularly educational.
When Omar Al-Bashir, the then president of Sudan, wanted for crimes against humanity, visited South Africa in June 2015, he was allowed to attend a summit and subsequently leave the country despite court orders to arrest him. Fast forward a decade and South Africa is spearheading the international legal campaign against Israel’s atrocities in Palestine.
Netanyahu would almost certainly be arrested in South Africa today, as well as in a host of other African and Muslim countries which had vehemently protested the arrest warrant against Al-Bashir in the past. Effective international rules and enforcement require consistent and credible support from a broad coalition of states – the ICC is increasingly short on both.
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