Keynote address by Senator Michael McDowell SC
In February 2025, the newly re-elected President of the United States of America, Donald Trump invoking emergency powers signed an order sanctioning Karim Khan, a prosecutor of the International Court for what he termed participation in illegitimate and baseless actions “targeting America and our close ally Israel”. He further accused the ICC of issuing baseless arrest warrants targeting Benjamin Netanyahu and defence minister Yoav Gallant. His sanction instrument recited that the ICC had no jurisdiction over the United States or Israel, neither state being party to the Rome Statute. Both states, he said, were “thriving democracies with militaries that strictly adhere to the laws of war”.
Karim Khan, a British prosecutor at the ICC, and judges of the ICC have found themselves incapable of carrying out even the most elementary credit card transactions and availing of any payments services with American ownership or control, including Visa and Mastercard.
This week, the Israeli cabinet led by Netanyahu threatened to disregard an order by Israel’s Supreme Court. The Israeli President, Isaac Herzog publicly stated that such non-compliance strikes “at the heart of the nation’s unity”.
These two episodes demonstrate how far respect for the rule of law has been degraded in two belligerent states that have in the past claimed but now have utterly forfeited respect for the rule of international law.
The extent of deliberate corruption of the American system of justice is becoming increasingly apparent under Trump’s malign regime. These events also raise the question: “what, if anything, is left of the international rule of law?”. Ireland, by contrast, “accepts the generally recognised principles of international law as its rule of conduct in its relations with other States”. (see Article 29.3 of Bunreacht na hÉireann).
Since the foundation of the United Nations, the concept of international law, from human rights to state sovereignty, has been elevated to international status and respect. The Charter of the United Nations in its preamble dedicated the UN “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.
The alternative to the rule of international law is a Hobbesian “state of nature” under which rights of and respect for citizens and states become redundant and might equates to right, rendering everyone subject to an existence which is, as Hobbes described it, “nasty, brutish and short”.
To take some examples, everyone on a boat suspected to be carrying drugs in international waters in the Gulf of Mexico or the Eastern Pacific Ocean is liable to be murdered from the air rather than face arrest and interdiction. Civilians in Gaza, South Lebanon, Beirut, Iraq, Syria and Iran have become liable to aerial extermination in pursuit of persons believed to be engaged in military actions against America or its allies. Donald Trump, America’s idiot king, has arrogated to himself powers of life and death across the globe without review or mercy. So too have Vladimir Putin and Benjamin Netanyahu.
The destruction of most of civilian infrastructure in Gaza and South Lebanon by ground and aerial bombardment cannot be challenged, it seems, by institutions such as the ICC. The death toll in Gaza which exceeds 70,000 human beings, the great majority of whom are entirely innocent of any crime, and at least 25,000 of whom are children is, it seems, to be put beyond sanction or reproach.
Gazing upon this bleak international horizon, all those who believe in international justice, be they jurists or mere spectators, increasingly feel a sense of despair and revulsion. How has the post-cold war world sunk into an era of brutish exceptionalism? How have American universities and the media been cowed into submission by Trump’s threats and sanctions? How is it that the United States has set up privatised concentration camps for those it accuses of breaking migration law? How can it be that people accepted into the United States are being herded together, separated as families and incarcerated in physical circumstances evocative of the Nazi’s detention camps?
Lawyers should perhaps reflect on the conditions that have given rise to the degradation of American democracy. It was, after all, lawyers who invoked the right of free speech as grounds for the unlimited use of private money to effect the outcome of elections. Funding restrictions in US electoral law were struck down as an infringement of the rights of the super wealthy to establish political action committees (PACs).
The emergence of a dollar-driven plutocracy in America was also encouraged by the ambitions of Rupert Murdoch, the evil genius behind Fox News. Murdoch’s influence has been almost universally malign.
He has stoked the fires of intolerance and division assiduously since his encouragement of the Tea Party politics of the American hard right. His backing for Trump has delivered what may be the coup de grace for a functioning US democracy with working checks and balances. His relentless pursuit of personal power and influence through money is perhaps best understood by his support for Brexit. He explained: “When I go into Downing Street they do what I say: when I go to Brussels they take no notice”.
Trump’s ruthless bullying of American universities by threatening defunding to those of them that did not prohibit their students from openly engaging in online protests against the American-sponsored genocide in Gaza has found no opposition of an effective kind through the American system of constitutional justice administered in courts.
The sad fact is that respect for international law is like a city under siege. Canada, Europe, Japan, Australia and New Zealand have become the major redoubts of the besieged.
Most of the world is defenceless against the besieging armies flying the banner “might is right”.
Is there hope for international law? We are approaching the midpoint of Trump’s second presidential term. Perhaps the idiocy, futility, and cruelty of the American-Israeli war on Iran’s despotic theocrats may prove the high watermark of his capacity to bully, coerce and wage tariff war. The golden age he promised in January 2025 has not materialised. His popularity has sunk to record lows.
The approaching midterm elections may deprive him of control of America’s House of Representatives. If so, the fightback to reclaim the soul of American democracy may soon commence. Trump’s efforts to thwart his unpopularity by voter suppression and gerrymandering may not succeed in November.
But American Supreme Court judges cannot be relied on to stand for what is right. Trump has weaponised the American judiciary to an extent not seen since the struggle between Roosevelt and the pre-war judicial conservatives.
Perhaps most disappointing of all is the capitulation of American lawyers to Trump’s destruction of national and international rule of law. Retribution against lawyers who acted against Trump’s interest’s during Joe Biden’s presidency seems to have cowed and subdued far too much of the American legal establishment.
There are lessons for us all, lawyers and lay men and women, in what has happened. Perhaps the most obvious lesson is the temptation to be cowardly in the face of assaults on justice and the rule of law wherever that occurs across the globe.
Now is not the time to give up on the rule of law nor to write it off as the delusion of a fleeting century. Now is not the time to simply hunker down and hope that others will lead the struggle to reassert the rule of law internationally.
Being vocal, consistent, clear-minded and brave is the moral imperative of the moment. We cannot afford to be weak and submissive.