The US Should Sanction The ICC

In a submission to the ICC last week, Khan doubled down on his demands to arrest Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. He was responding to a multitude of submissions made to the Pre-Trial Chamber contesting the warrants he demands.

Most of these concerned the ICC’s jurisdiction over Israel rather than the substance of his allegations which we believe, on the basis of our own extensive investigations in Israel and Gaza, are themselves without merit.

Khan’s arguments in favour of jurisdiction amount to legal contortions to achieve a political agenda, reflecting the approach to Israel of this highly politicised court. They are also extremely dangerous, not to Israel alone, but to all Western democracies. Israel, like the US and many other countries, is not a state party to the ICC. Before 2015 that placed Jerusalem outside the scope of the ICC’s legal powers, much as the court might have wished otherwise.

"This whole episode is not just a danger to Israel but to the world."

That year "Palestine" became a member of the ICC even though it is not a full member state of the U.N. In order to secure jurisdiction over the putative state, and by extension over Israel too, the court unilaterally decided on its boundaries: "the West Bank", east Jerusalem and Gaza. Of course borders can only be agreed by direct negotiation between Israel and the Palestinian Authority, which has not been achieved. That though is an inconvenient detail to be ignored by an ICC that wants Israelis in the dock at The Hague.

One of the main issues raised by those challenging Khan’s application, including the previous UK government, is that ICC jurisdiction over Israel violates the Oslo Accords. No matter, says the Prosecutor: the Rome Statute, which founded the ICC, overrides even that legally-binding bilateral treaty.

Khan objects to the restricted legal powers granted to the Palestinian Authority under the Oslo Accords, which effectively nullify ICC jurisdiction over Israelis in PA-controlled territory including Gaza. According to him that can’t be so because it is not up to Israel as an "occupying power" to impose legal restrictions on a sovereign people. He of course rejects the reality, so hotly debated for so many years, that "Palestine" is not in fact a sovereign state and Israel cannot be an occupier of territory over which, since 1948, only it has held legitimate sovereignty — including the "West Bank", East Jerusalem and Gaza.

Khan also imperiously dismisses all concerns over the fundamental principle of complementarity. That means the ICC cannot take action over allegations against individuals in a state that is capable and willing to itself investigate and if appropriate bring criminal charges. Israel, with an internationally-respected judicial system, falls into that category, as Khan himself has previously recognised. But don’t let that get in the way of Khan’s determination to drag Israelis into the dock. He argues now that because Israel has not indicted Netanyahu and Gallant on the precise charges he has unilaterally framed, then he must take jurisdiction. He even has the temerity to suggest that: "If it is the case that Israel cannot at present conduct the same proceedings as the Court due to the constraints of the ongoing armed conflict, this in fact calls for the Court’s action".

Unrealistic and meritless arrest warrants

We know of no other country that has been treated anything like this. For example Australia and the UK conducted war crimes investigations that took many years and were not subjected to intervention by the ICC. Israel, though, must apparently be subjected to special treatment. Arrest warrants were demanded by Khan seven months after the start of the conflict which triggered his intervention.

An ICC inquiry is one thing. Issuing arrest warrants against national leaders is something entirely different. In his latest submission to the ICC, Khan justifies his request solely on the basis that arresting Netanyahu and Gallant "could avert further harm to the victims who remain in Gaza and to those who were forced to leave but continue to suffer physical and mental harm". That is manifestly absurd and Khan’s application should be immediately dismissed on that ground alone.

Does he expect Israel will arrest and hand over its Prime Minister and Defence Minister because he says so? Or perhaps he thinks the ministers will travel to the territory of a member state that will incarcerate them and send them into his clutches. Obviously neither would happen but if it did, does Khan actually believe their replacements would end Israel’s defensive war (for which read: surrender to Hamas)?

Khan must know none of this is realistic and therefore his so-called justification is entirely without merit. The truth is his arrest warrants are nothing other than a performative charade, intended to insult Israel and undermine its sovereignty and legitimacy.

We said earlier that this whole episode is not just a danger to Israel but to the world. Of course the inclusion of Hamas terrorists in Khan’s warrant application is yet more theatre, intended to pretend to the world that the ICC is "even-handed". No extremist group or despotic regime has ever been or is ever going to be in any way deterred by the grandly gowned justices at The Hague. Quite the reverse. Hamas and its kind will be emboldened by the knowledge that their enemies are vulnerable to legal action by the ICC while by definition they themselves remain inviolate. Khan pretty much confirmed this by not even bothering to adduce any justification for the Hamas arrest warrants, such as preventing further atrocities against Israel.

"As with so much else in this anti-Western political warfare campaign, Israel is the canary in the coal mine."

Unfortunately the only way to deal with such bloodthirsty terrorist gangs is by military force not by lawsuits handed down by the ICC. Paradoxically Khan’s ill-judged machinations serve to deny such effective action by intimidating those national leaders who need to use force for the legitimate defence of their countries.

If the unaccountable judges succumb to Khan’s demand we will have further confirmation that they are driven by a political agenda lacking legal logic or reason. Only the US can do anything about that. President Biden and Secretary Blinken both condemned Khan’s application back in May but seem unwilling to go beyond mere words. Previously the US Administration sanctioned ICC officials for attempting to bring their countrymen before the court. In June the US House of Representatives voted to pass legislation sanctioning the ICC for its action against Israel. Negotiations with the Senate to get that bill passed should be renewed with the utmost urgency. 

As with so much else in this anti-Western political warfare campaign, Israel is the canary in the coal mine and if this precedent is allowed to stand US political and military leaders will be back on the ICC's menu and the world will be a more dangerous place.