Is the International Criminal Court about to destroy what's left of its reputation?
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A story has been running for days that the prosecutor at the International Criminal Court (ICC) in The Hague is poised to issue arrest warrants for Israel’s prime minister Benjamin Netanyahu, defence minister Yoav Gallant and Israel Defence Forces chief of staff Herzi Halevi over alleged war crimes committed in Gaza.
If this is correct, the prosecutor would be taking action against Israel for defending itself against genocide while doing more than any other military in the world to minimise civilian death and suffering. It would mean the ICC would be acting on the basis of lies put out by Hamas, such as the number of civilians killed in the Gaza war — figures which have been rubbished by statisticians — and Israel’s alleged blocking of humanitarian aid — a claim that’s contradicted by evidence of aid being provided from the start of the war but which was mostly stolen by Hamas.
Such arrest warrants would be a wickedly perverse move and a breathtaking onslaught against truth, justice and the Jewish people. The move would represent the ultimate in defamation, demonisation and delegitimisation mounted by the apparatus of international law against the Jewish state, a unique and malicious double standard applied to no other country on earth.
But are these reports true?
There’s no doubt that the ICC has been historically hostile to Israel. There’s also no doubt that the ICC prosecutor, Karim Khan, is being put under enormous pressure by member states and activist groups to act against Israel. This pressure has been confirmed by US sources — who say, however, that they are uncertain if arrest warrants are imminent.
But a number of things in these reports don’t add up.
The story seems to have emanated from unknown Israeli sources. In the Israeli newspaper Ma’ariv, Ben Caspit reports that Israel has picked up “sensitive” information indicating that Khan is seriously considering issuing arrest warrants against the prime minister and other top Israeli officials.
This is said to have “terrified” Netanyahu who asked US President Joe Biden for help in blocking the ICC’s warrants. In an atmosphere of “managed panic” in the Israeli government, high-intensity international efforts have reportedly been underway to put pressure on those who might be pressurising Khan to act against Israel in this way. Israeli president Yitzhak Herzog said today:
I unequivocally object to any attempt to abuse international legal institutions — including the ICC — to deny the state of Israel its basic rights. We have an independent and robust judicial system that knows how to investigate as needed.
The US National Security Council has said it opposes the ICC’s investigation into Israel’s alleged war crimes, on the grounds that the court has no jurisdiction to discuss the Gaza war.
This intervention contradicts a key element of the most alarmist reporting, the claim that the Biden administration is in cahoots with the ICC in this deeply hostile move against Israel. The Biden administration has certainly behaved as much like an enemy as a friend of Israel over the past seven terrible months, undermining its war of self-defence at every turn and parroting the defamatory lies designed to demonise and delegitimise it (even while the US has continued to supply it with essential armaments).
However, the claim that it was giving the nod to the ICC warrants always seemed improbable since the US isn’t a signatory to the ICC and has no standing there at all. The suggestion in early reports that the US was even involved in Khan’s selection as ICC Prosecutor because he was regarded as a suitable patsy therefore seemed fanciful in the extreme.
In addition, none of this fits with the known attitude of Khan himself. A British lawyer and an extremely cautious individual, he is also an Ahmadi Muslim. Ahmadis are themselves victims of persecution and oppression within the Islamic world where other Muslims consider them to be heretics. He is hardly likely to be a Hamas groupie.
Moreover, as Caspit writes:
Prosecutor Khan is not considered to be hostile towards Israel. Quite to the contrary. He came to Israel after the massacre at the invitation of the Hostage and Missing Families Forum, toured the devastated Gaza periphery communities, met with survivors and with hostages who had been freed, and was deeply moved. Teams on his behalf have met at length with all of the hostages who were freed from Hamas captivity, and have been working to collect evidence.
Khan, who became the ICC Prosecutor in 2021, is undoubtedly keenly aware of the ICC’s deeply damaged reputation as a court owing more to international power politics than to the rule of law, and which was all but wrecked by his two incompetent and deeply partisan predecessors in the post.
While the current investigation into possible abuses in Gaza and the disputed “West Bank” territories of Judea and Samaria dates back to 2014 and has been marked by a number of malign moves against Israel, Khan will be acutely concerned to repair the ICC’s reputation as an impartial and fair court of law.
Among other considerations, that means abiding by court’s own fundamental rule of complementarity. As an informal expert paper published by the ICC put it:
The statute recognises that states have the first responsibility and right to prosecute international crimes. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings. under which it has to give a state time to investigate itself any claims that have been made against it.
In practice, this means that before the ICC can make any move against Israel, the Jewish state must be given the chance to investigate any charges laid against it. Since the war in Gaza is still under way, that is clearly not yet possible.
In addition, Khan has pledged to deliver impartial justice. In a statement he made at the end of October, when he spoke emotionally about his horror and repugnance at the crimes committed against innocent Israelis on October 7 and also about the suffering of the “innocent Palestinians” in Gaza, he said he would investigate possible crimes committed “on the territory of Palestine by any party”.
So if these reports of imminent arrest warrants against the Israelis are fundamentally untrue, what is the explanation for them? It’s possible that other agendas are in play, aiming to whip up a storm to service self-serving or partisan interests of one kind or another.
In relation to that, Caspit’s story contains one further intriguing nugget. Having reported that Khan’s teams have been working to collect evidence about the kidnap into Gaza of the Israeli hostages, Caspit writes:
However, in the meantime, a second ICC team has been operating as well, a separate team that decided that a balance had to be maintained and that the “other side”— in other words, Israel — also had to be dealt with.
Israel reportedly pressed the panic button having obtained “sensitive information” about the ICC’s deliberations. Might this have been obtained by listening in to the ICC “second team” investigators’ conversations? Might these “second team” investigators themselves have been malignly disposed towards Israel?
But whatever the investigators might be be saying, the person who decides whether or not to act against Israel is no-one but Khan himself. Is it likely that such a man would act in such a way?
On the other hand, is it likely that the Israelis can be so ignorant of the way the ICC actually works?
Maybe these alarmist reports are indeed well-founded. Maybe Karim Khan is about to finally destroy what’s left of the ICC’s reputation. Maybe this really is the apotheosis of the current infernal global drive to destroy Israel through a lethal pincer movement of military entrapment and a legal sucker punch.
If so, it would mark a new and even more terrifying low in this crisis point for the Jewish people and for civilisation.
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