There is nothing more distorted than attempting to prevent Israel from defending itself against a murderous enemy openly calling for the destruction of the state of Israel. If the warrants are issued, they will harm the commanders and soldiers of the IDF and provide a morale boost to the terrorist organisation Hamas and the axis of radical Islam led by Iran against which we are fighting.
Israel Katz, Israel’s Foreign Minister
Such a lawless action by the ICC would directly undermine US national security interests. If unchallenged by the Biden administration, the ICC could create and assume unprecedented power to issue arrest warrants against American political leaders, American diplomats, and American military personnel, thereby endangering our country’s sovereign authority.
Mike Johnson, Speaker of US House of Representatives
We’ve been really clear about the ICC investigation. We don’t support it; we don’t believe that they have the jurisdiction.
Karine Jean-Pierre, White House spokesperson
It would be a fatal blow to the judicial and moral standing of ICC to pursue this path against Israel.
John Fetterman, US Senator
The fact that innocent civilians are trapped under the weight of a war they cannot escape and which is not their fault is not tenable.
Karim Khan KC, ICC Prosecutor
The above quotes are from The Guardian. A mere sampling. Aside from the obvious hypocrisy of US President Biden and his administration of supporting the International Criminal Court (ICC) when it comes to investigating alleged Russian atrocities in Ukraine while not recognizing the ICC’s jurisdiction to investigate and prosecute crimes alleged to have been committed by Israeli officials and the Israel Defense Forces (IDF), these quotes are as illuminating as they are alarming.
Rumors abound. Potential arrest warrants for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and IDF chief of staff Herzi Halevi may be in the offing. According to Axios, Netanyahu has asked US President Biden to intervene. Netanyahu wants the US to assist in preventing the ICC from exercising its jurisdiction and carrying out its mandate – to prevent arrest warrants from being issued against senior Israeli officials and IDF members in connection with the war in Gaza.
A 26 April 2024 editorial by the Wall Street Journal, a conservative/Republican party mouthpiece owned by Rupert Murdoch, highlights, unabashedly, the sort of intrusive interference and bullying tactics the Biden administration is being asked to engage in to get Khan to back down. It is worth a close read, but here are the highlights:
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- The US and UK, who “championed” Khan’s candidacy, “may have influence if they warn Mr. Khan of what will happen if he proceeds. If they don’t, President Biden and Prime Minister Rishi Sunak risk finding Americans and Britons next under the gun” (emphasis added).
- Hamas, having started the war, “is trying to win via international pressure. The ICC would subvert its own principles if it goes along with that strategy.”
- Khan, as ICC prosecutor, “is supposed to investigate before indicting a world leader, not the other way around. But a proper investigation of allegations by anti-Israel NGOs has been impossible while Gaza is a warzone and ICC staff are busy in Ukraine. An indictment now would be highly irregular and revealing of bias or great-power pressure.”
- The ICC, complementing national legal systems, should intervene only when states “are unable to investigate. … Mr. Khan has said Israel has a ‘robust’ system to investigate itself, and the International Court of Justice is also on the case. Far from the ‘court of last resort’ it is meant to be, the ICC would be piling on.”
- The ICC arrest warrant for Vladimir Putin, will be “cheapened.”
- The arrest warrants would be a blow to the U.S.-Saudi-Israeli deal. “How could the Saudis make peace with an Israeli regime branded as war criminals?”
- International tribunals are poorly placed in wartime to meet the high evidentiary standards of a criminal trial.
- Warding off prosecutions against a democratic ally is necessary by using “all means necessary and appropriate”, as the US Congress has authorized the President (emphasis added).
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While this may merely be an editorial, it provides grist for the mill and helps shape talking points justifying intimidating tactics to undermine the ICC’s independence and legitimacy.
The request is understandable – especially when considered in the context of the ongoing, delicate negotiations for the release of Israeli hostages in exchange for a ceasefire. The humanitarian crises continue for millions of innocent Palestinians caught in the middle. More aid is getting through, but questions abound here as well as to why this aid could not or was not provided earlier when by any objective measure catastrophic human tragedy, including preventable starvation, loomed heavily on the horizon like a hovering dark cloud pregnant with torrential rain. Also, time is running against the innocent Israeli hostages. Regardless of how many are still alive, the return of all of them to Israel and to their families and friends is a sine qua non for a cessation of operations by the IDF and for negotiating an off-ramp to the war.
Working tirelessly to break the impasse and find a mutually acceptable formula, even as a temporary stopgap to make space for a comprehensive and sustainable peace plan, the negotiators appreciate that external undertakings – however well-meaning and well-deserved, such as issued arrest warrants against the decision-making interlocutors to a negotiation – can derail the process (see here and here). Accountability is essential for peace. So is prudence. Amnesty not being an option for international crimes (here), the next best thing is to let events simmer down, get to a yes-yes cessation of hostilities, map out a comprehensive transitional justice plan, and eventually deal with impunity through judicial processes.
No one is above being investigated and prosecuted. Priority, however, must be given to a cessation of the fighting and the amelioration of conditions for the innocent and helpless and tormented civilians on all sides. What Netanyahu wants, however, is no investigation whatsoever – for the US, a non-State Party, to pressurize the ICC into abandoning its obligations, to interfere with its mission, and effectively, to denude it of its credibility and viability as an independent international judicial institution. His focus is misplaced, with his confrontational rhetoric against the ICC being more about him and his associates and senior military officials than about the ongoing negotiations.
Arrest warrants – even if meritorious (a caveat not said lightly) – would obviously gum-up the negotiations. The rush should not be on issuing arrest warrants. The rush should be on finding a permanent ceasefire and a well-crafted step-by-step plan for peaceful coexistence between Israelis and Palestinians, and one that encompasses a Palestinian state adjacent to and in harmony with Israel. A tall order, but what other realistic options are viable?
Rumors aside, the above quotes speak volumes. First, some context.
Israel was attacked on 7 October 2023. It has the right to defend itself. No credible factual or legal arguments can be made to the contrary (here). However, in defending itself Israel must abide by the laws of war. In hindsight (though not without appreciation, here), it should have exercised its right of self-defence in an exceptionally cautious way, i.e., exercising beyond the minimum restraints permitted so as to avoid excessive loss of innocent human lives and suffering.
The law recognizes and permits innocent civilians being harmed and killed as collateral damage. But there are limits; the use of force is regulated. Legitimate self-defence operations are not exempted. Nor do historical sufferings and tragic experiences (such as the Holocaust) afford immunization from accountability for conduct deemed prosecutable under international criminal law. Yet, this is card often played by Netanyahu and some of his associates. Conflating historical tragedies with ongoing events as a rationalization for why the Government of Israel is forever beyond reproach irrespective of conduct that would otherwise be considered international crimes within the jurisdiction of the ICC – or any international criminal tribunal for that matter – is unsustainable.
Undeniably, the optics of Israel’s policy and the IDF approach in Gaza are bad. Really bad. But looks can be deceiving, especially when all the facts are unknown, when context is misapprehended, and when the narrative is understandably driven by emotions and assumptions and good intentions. I am troubled by what I see and hear. Yet, I am not prepared to jump on the bandwagon and claim with certainty that crimes are or are not being committed. I do not have sufficient information to claim one way or another.
The Netanyahu administration could have and should have provided more humanitarian and life-saving aid and food and medicine, etc., much sooner. Why did it wait so long to act (or react) on what the world was witnessing and when relief organizations were ominously forecasting a famine? Why was it necessary for it to be compelled by decision of the Israeli Supreme Court to allow for the opening of certain border crossings under its control for the flow of relief aid, which, serendipitously, came only a day before the Biden administration publicly announced, with great frustration and disquiet, that it would condition further aid to Israel on its protection of civilians and humanitarian aid workers in Gaza? Prior explanations of Hamas and others stealing the aid – hence the reticence to have aid flowing at the requisite level – rang hollow when considering the catastrophic consequences. But here again, do we have all the facts? No. As a defence lawyer, I am trained to give the benefit of the doubt to the accused and to demand solid, verifiable, objectively reliable proof, before rendering an opinion – however bad the evidence may appear on the surface and without adequate scrutiny.
As convenient as it may be to jump to conclusions based on the optics and the words of relief workers, until all the facts, unvarnished, are allowed to breathe in sunshine, the better course is to withhold judgment. The onus is on the Netanyahu administration and the IDF to provide credible evidence in support of their policies and actions. While I trust Israel and I am willing to take Netanyahu at his word, he needs to verify his claims that at all times and under all circumstances, senior government and military officers of Israel have fully abided by the laws of war. Understandably, with the war ongoing, it is not possible to be utterly forthcoming and transparent due to national security reasons. The time for transparency will come. When it does come, the Netanyahu administration and the IDF would be well served to be transparent and cooperative. I can appreciate the reticence for not trusting the ICC, but as I’ve noted in a past post some years ago, were I his legal advisor, I would recommend engagement over stonewalling.
According to The Guardian, Netanyahu has suggested that “the ICC could press charges imminently after an investigation launched in 2021 that covers events starting in 2014” – including “Israel’s construction of settlements in occupied territory” – and is scrambling to stem the tide by calling on the Biden administration to intervene. In his video message, Netanyahu attacks the ICC (unwarrantedly, since he only has rumors to go by) rather than focus on the disruption to the ongoing negotiations the supposed impending arrests warrants would have. Diplomats of G7 nations (Canada, France, Italy, Germany, Japan, the UK, and the US) – six of which are States Parties of the ICC and thus recognize its jurisdiction, unlike the US which does so when politically expedient – are also jumping on the bandwagon. Their refrain is appropriately measured: the ICC should refrain from announcing war crimes charges against Israel or Hamas officials, amid concerns that such a move could disrupt the chances of a breakthrough in ceasefire talks. Sound diplomacy.
If what is being reported is correct, the ICC, and in particular the OTP, is under a full-court press that include intimidating rhetoric and threats to cease and desist in whatever measures are being contemplated against senior Israeli government and military officials. Some of these tactics are specifically designed to interfere with the ICC’s independence and unduly influence, negatively, the OTP. The Biden administration rescinded the Trump administration’s sanctions and visa restrictions against ICC personnel, abandoned the anti-ICC hostile rhetoric (here, here), and has been selectively supportive of the ICC. Yet, for an administration that embraces the rule of law and touts human rights values, you would think a more nuanced position would be taken – as opposed to categorically rejecting any actions taken by the ICC, however meritorious.
It is unclear to what extent Khan is covertly pressured to slow-walk any impending arrest warrants. Khan has proved to be an adroit political operator. Having worked with him when he was on the defence side, I am certain he is mindful of his office’s limitations. He appreciates the power of the purse, as evidenced by his unrelenting hunt for financial, human and technical resources beyond the budget allocated by the ICC Assembly of State Parties. Soft power comes in many forms, and one of them is being on good terms with states that generously give to the OTP, enabling it to form teams of seconded investigators and experts dedicated to discrete situations, such as the Russo-Ukraine war and Palestine.
Khan also appreciates the importance of putting pragmatism over idealism. He knows, as we all should know, that international criminal justice is not above politics, especially when realpolitik – an unavoidably necessary operational and decision-making factor – is at play. The perfect or the pure should not stand in the way of the good, the immediate necessity. To this, I am reminded of the memorable line from the film Lincoln: “A compass will point you true north. But it won’t show you the swamps between you and there. If you don’t avoid the swamps, what’s the use of knowing true north?” I am confident Khan gets it; he is anything but impulsive or imprudent. Khan is neither anti-Israel nor anti-Semitic. One can question some of his policies (as I have on occasion here, here, here, here), but not his integrity.
Khan, in his Churchillian speech in Egypt last December claimed that the investigation is “moving forward at pace, with rigour”. Mind you, the investigation was ongoing when he was elected as ICC Prosecutor in 2021. We do not know how far that investigation had progressed prior to the 7 October raid. Presumably, the OTP has significantly ramped-up its investigative efforts. Be that as it may, it seems odd that the investigations into the events in Gaza are sufficiently complete in such a short period, resulting in arrest warrants, knowing the complexities in gathering credible evidence and the general length of time the OTP takes in completing investigations.
If arrest warrants are impending for the current events, this would be record-breaking. It would also have more than a whiff of political opportunism: how could the OTP manage to move so quickly, all things considered? And what of the timing? The rumors may be just that: rumors. Whatever the case, they may have served positively, as a catalyst for restraint – a wakeup call if you will. The rumors have certainly gotten everyone’s attention, most assuredly those suspected of being listed for arrest.
If the rumors are true, politics could, though not necessarily, be afoot. Khan and his team would be carrying out their mandate. No reason to suspect foul play, lack of independence, lack of impartiality, or lack of integrity. This does not mean that the evidence collected and assessed by the OTP rises to the level of proof beyond a reasonable doubt, but I would certainly think, knowing what is at stake, Khan would not initiate a high-risk maneuver such as issuing arrest warrants were he not convinced that any alleged charges against Netanyahu, Gallant, Halevi, et al., would be confirmed to the rather low standard of sufficient grounds to believe.
Khan can defer acting in the interests of justice giving the negotiations a chance. He can do so implicitly and without reason (as his predecessor seemingly did here), or explicitly by formally invoking his discretionary authority under Article 53(1)(c) of the Rome Statute as explained in the OTP’s Policy Paper on the Interests of Justice. And if not, who is to say whether the Pre-Trial Chamber would usurp this discretionary authority as it has done in the past (here) to override the OTP and put a stop to the proceedings in the interest of justice? In any event, the drafters of the Rome Statute have placed sufficient safety valves with checks and balances to keep the ICC Prosecutor from going rogue, from imprudently exercising his authority. No need to panic. And certainly, no need for counterproductive bullying tactics and melodramatic histrionic.
Whatever happens in the next days, weeks or months, the Biden administration and supporters of Israel in the US Congress should refrain from making intimidating and threatening remarks towards the ICC, especially the OTP. Israel should stop mischaracterizing the nature and motives of the ongoing investigations. Neither Israel’s nor the US’s national security interests would be at risk should the rumors of impending arrest warrant prove true. Israel’s right to self-defence will not be impacted; it’s nonsense to claim otherwise.
Arrest warrants based on solid evidence after careful and thorough and transparent investigations will enhance, not diminish the ICC’s moral standing. But even so, just because arrest warrants can be issued, should they be issued now? Circumspection and judiciousness dictate otherwise. Any impending arrest warrants that would impede the negotiation and would impact the safety and lives of the hostages and innocent civilians should be deferred.
Accountability is not compromised by giving the negotiations for a ceasefire a chance. A decision that should be determined by ICC Prosecutor Karim Khan, assuming the rumors of impending arrests warrants are true.
An illuminating perspective on this recent issue.
“It is unclear to what extent Khan is covertly pressured to slow-walk any impending arrest warrants. Khan has proved to be an adroit political operator. Having worked with him when he was on the defence side, I am certain he is mindful of his office’s limitations.”
“limitations” – Bottomline, who exactly is going to enforce arrest warrants on those in Israel and the Hamas leadership (we could throw in future ICC moves on Putin in Ukraine and Xi with the Uyghurs if countries were willing to initiate and risk the potential wrath). So, acknowledging such limitations, how much of this is for political show by others simply using the ICC mechanism? The ICC has to be careful of viewing such moves as being based on humanitarian motives, rather than as you mention political undertones. The ICC is a worthwhile organization that must not let itself be used simply as ‘cover’.