Stephen Daisley Stephen Daisley

How Israel should fight back against the ICC’s lawfare

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The application for arrest warrants against Israeli prime minister Benjamin Netanyahu and defence minister Yoav Gallant is an act of lawfare. In seeking the detention of Israel’s political and military leadership during its war against Hamas, Karim Ahmad Khan, the prosecutor of the International Criminal Court (ICC), is inviting that body to intervene in the conflict. Granting these warrants would require ICC signatory countries such as the UK to arrest the men if they set foot in their territory and hand them over. The likely effect of their arrest would be to cripple Israel’s war effort and throw the country into political chaos. Khan is proposing, in effect, that the ICC prevent the democratically elected government of a sovereign state from defending itself against the terrorist regime that invaded its territory, murdered 1,100 people, raped women and took 250 hostages. 

Israel must take the lead in standing up for itself

Khan has also issued arrest warrant applications against three senior Hamas leaders. This is objectionable in its implicit drawing of equivalence between murderous terrorists and the democrats fighting them, but there is something more objectionable than that. The applications relating to Hamas leaders are little more than fig leaves. Terrorist organisations can function pretty well despite arrest warrants. Yahya Sinwar has been living under threat of Israeli assassination since 2017, when he assumed the leadership of Hamas in Gaza, and still he was able to mastermind the 7 October pogrom. Lawfare is a mere inconvenience to terrorists but to democrats it is a grave threat to their ability to lead their country. It is hard to believe this difference does not register with Khan. 

His announcement came on the same day that other international institutions, from the EU to Nato, rended their garments for Ebrahim Raisi, the Butcher of Tehran, claimed by the first fatal helicopter crash in which the only victim worth mourning was the helicopter.  

Khan’s decision was met with coruscating and utterly disingenuous rhetoric from the Biden administration. The president said the applications were ‘outrageous’, that ‘there is no equivalence – none – between Israel and Hamas’, and that ‘we will always stand with Israel against threats to its security’. What a crock. There would be no applications without the tacit approval of the United States. The administration, and specifically its furiously anti-Israel State Department, views the ICC as a leash that can be placed on Israel’s war efforts. 

Congressional Republicans previously warned Khan not to move ahead with applications or face consequences. Senator Tom Cotton of Arkansas said: ‘Target Israel, and we will target you.’ It’s time for Khan and his institution to face those consequences. These might include barring ICC officials from entering the United States, freezing any US-based personal assets, and lobbying American allies to indicate their opposition to this prosecution. While the executive branch will want to pare back any sanctions to the bare minimum, it will have to reckon with the strong, bipartisan support for Israel that remains in the Senate and House of Representatives. 

However, it is Israel that is being targeted by the ICC, and Israel that must take the lead in standing up for itself. 

Avraham Russell Shalev, a lawyer with the Kohelet Policy Forum, recommends four responses. First, relations with the ICC should be taken out of the hands of the government’s legal advisers and placed under the ambit of the Prime Minister’s office. The ICC is really a political rather than a legal threat to Israel and should be combated as such.

Shalev’s second recommendation is that Israel’s Knesset pass a law in the vein of the American Service-Member’s Protection Act, which barred US government agencies from cooperating with the ICC without a political direction and authorised the use of any means necessary to liberate American soldiers or officials seized under an ICC warrant. Third, Shalev wants bilateral immunity agreements styled after those in place between the United States and its allies. This would allow Israeli officials wanted by the ICC to travel without fear of being detained and handed over to the ICC. 

Shalev’s fourth and final recommendation is that Israel embark on a public relations campaign to expose the ICC’s anti-Israel bias. While the ICC prosecutor can afford to lob a few token prosecutions in the direction of Hamas, it will be more difficult to do the same with the Palestinian Authority, a serial human rights abuser and terrorism facilitator but one that enjoys the diplomatic support and financial backing of the international community. Shalev suggests that Israel offer to release its extensive dossiers on the PA’s involvement in war crimes against Israelis and Palestinians. If the ICC fails to take forward prosecutions, it will have exposed itself as a political rather than a legal entity and one institutionally and ideologically hostile to Israel. 

I would add another, more fundamental remedy. Israel and its supporters should begin in earnest a campaign arguing for mass withdrawal from the Rome Statute, which would effectively abolish the ICC. The very notion would be scandalous to law professors, the human rights industry and progressives but the ICC has existed for just 22 years. In that time, it has typically been accused of anti-African bias for its focus on alleged war crimes and crimes against humanity on that continent, but this should be understood as a contested body gradually building its standing before it begins throwing its weight around more widely. Shalev documents its partiality in favour of the Palestinians and against Israel but if the ICC were to successfully prosecute Israel, it would not stop there. 

The ICC is really a political rather than a legal threat to Israel and should be combated as such

The ICC’s member states signed up in good faith and on the assumption that it would limit itself to preventing or prosecuting atrocities of the kind seen in Rwanda and Bosnia. But like every other international body, it is susceptible to capture by political interests and progressive ideology. Stopping Israel from defeating Hamas would embolden the ICC to intervene against other states engaged in conflict or embroiled in territorial disputes. We might also see a more activist ICC expanding its interpretation of crimes against humanity to justicialise domestic policy questions within nations and outwith the context of any conflict. Given what we know about how quickly and completely progressives and other activists can place an institution at the service of their ideology, it isn’t difficult to imagine the ICC sitting in judgement on matters that Rome Statute signatories never intended to become part of the court’s caseload.  

Legal academics work themselves into ecstasy at the thought of international law breaking new ground in the imposition of global norms. Phrases like ‘rules-based international order’ issue forth like testimonies at a tent ministry. But while the intentions behind such an order are often noble, the fair and even application of rules on almost 200 countries is nigh on impossible. 

As long as state sovereignty exists and serves the national interest, international law will continue to operate more in ambition than in application. As long as some states are vastly more powerful than others and able to insulate themselves from a system of justice that is only truly binding on less powerful states, that system of justice is going to be regarded as highly compromised and contingent. As long as bodies charged with upholding international law continue to be as influenced by political considerations as by legal facts and processes, there will be campaigns nationally and internationally to reform those institutions or divest from them altogether. 

The ICC has contributed little to the upholding of the Fourth Geneva Convention in its two decades of existence and has evolved into a thoroughly political organisation. To the extent international law can be enforced except in disputes between states or maritime regulation, it is clear that the ICC is not the body to do this. It should be wound up and, if possible, a more suitable institution found to fulfil its purpose.