Democratic nations must challenge ICC’s legal distortions for Israel’s and their own sake

Article published by,  29 April 2024. © Richard Kemp and Rafael Bardaji

Is the International Criminal Court about to issue arrest warrants for top-level Israeli political and military leaders? That is certainly the view of some legal professionals in the court’s Hague ecosystem — and perhaps as early as this week. Any indictment for international crimes within the ICC’s jurisdiction cannot possibly be made with a solid legal basis in wartime.

The court has not been able to carry out any investigations on the ground in Gaza and will not be able to do so for perhaps many months. That means any such move would be politically motivated, intended to undermine Israel’s ability to defend its citizens from terrorist violence.

Given the high stakes in the region, and the direct involvement of the US in the conflict, it is inconceivable that ICC chief prosecutor Karim Khan would issue indictments without the approval and maybe even the active encouragement of the White House.

With the presidential election approaching and a desire to gain votes from both supporters and opponents of Israel, Biden has been trying for months to restrain Jerusalem’s legitimate self-defense while at the same time backing its war effort. That amounts to disgraceful duplicity at a time when America’s closest ally in the Middle East needs full-throated support.

Members of Biden’s administration and his political allies have also shown extraordinary hostility to the democratically-elected prime minister of one of America’s closest allies, going back well before this war began. What better way now of heaping pressure on Israel and trying to drag down its prime minister than having the ICC-level charges at Netanyahu directly as well as his defense minister and military chief of staff?

Just the threat of such a highly dangerous move also opens up other duplicitous opportunities for Biden to coerce Israel. He can perhaps agree to call off the ICC dogs in exchange for concessions from Jerusalem, such as holding back from Rafah, some kind of prolonged ceasefire or undertakings over the looming battle against Hezbollah in south Lebanon.

On Monday, White House Press Secretary Karine Jean-Pierre told a briefing, ‘We’ve been really clear about the ICC investigation, that we don’t support it, we don’t believe that they have the jurisdiction.’ I wonder what price the White House tried to extract from Israel even for that weak show of disapproval.

If the ICC does go ahead with its planned indictments it will be playing right into the hands of Iran and Hamas. In fact this kangaroo court would be doing their dirty work under the cynical guise of what it laughably calls ‘justice’. Many believe that Hamas’ invasion on October 7 was intended by Tehran to derail normalization between Israel and Saudi Arabia which at the time seemed imminent.

It doesn’t look like the war itself will achieve that, but international criminal charges against Israeli leaders might well scare the Saudis off. That would be hugely damaging to the prospects of regional stability and would further embolden Iran. And as Hamas prepares to fight from its final stronghold in Rafah, its only chance of survival as a military threat to Israel and the governing authority in the Gaza Strip is for the IDF to be forced to end the war.

That isn’t going to happen because the Israeli government has an absolute duty to defend its citizens against Hamas’ aggression. But ICC indictments would certainly encourage Hamas to keep fighting. In short, the ICC and its clandestine sponsors in the White House would reduce the prospects of wider peace in the Middle East, contribute to prolonging the Gaza conflict and lessen the prospects for the release of Hamas’ hostages.

There are also wider implications. Whatever the actual charges being brought by the ICC, whether relating to civilian deaths or humanitarian aid or both, they would validate Hamas’ strategy of using civilians as weapons of war. This is intended to directly prevent the IDF from dealing effectively with terrorists embedded in the civilian population by provoking international outrage.

The same principle applies to Hamas’ hijacking of humanitarian aid to both strengthen its own fighters and increase civilian suffering. We have seen the effects of these murderous stratagems in international bodies like the UN and International Court of Justice, on university campuses and the streets of our cities.

The use of civilians as weapons has also been widely employed by jihadist groups including in Afghanistan and Iraq against coalition forces and this will continue in the future, especially with the sort of encouragement we are seeing from The Hague. ICC action against Israel, which by our own assessments, including from inside Gaza, has been fighting this war strictly according to the laws of armed conflict, would make it much more difficult for any democratic nation to defend itself against such aggression.

Be in no doubt that Western democracies that are willing to use legitimate military force in defense of their people are firmly in the ICC’s cross-hairs. The prosecutor has tried to bring charges against both the US and UK over operations in Iraq and Afghanistan, so far without success. The court’s political motivation becomes crystal clear when you consider that its actions against Israel, the US, and UK actually violate its own charter, which allows it to intervene only when a state’s own legal authorities cannot or will not take action themselves.

Each of these three countries has long-established and internationally respected independent judicial systems with track records of investigating and when necessary punishing those accused of war crimes. Indeed, Karim Khan said in December that Israel has ‘a robust system intended to ensure compliance with international humanitarian law’.

The previous US administration sought to protect its own citizens and citizens of allied countries from perverse ICC investigations by enabling sanctions against court officials. In his efforts to appease the ICC, the relevant Executive Order was rescinded by Joe Biden. That amounts to nothing less than the shameful betrayal of American leaders and soldiers as well as their allies.

If the ICC goes ahead with its planned indictments, the US should restore such protection for Israel, which like America is not a state party to the ICC’s foundational Rome Statute. However, with the likelihood that the White House has its fingerprints all over this plan, that is only going to happen through concerted domestic political pressure which is needed urgently.

Beyond the US, when in 2021 the ICC deliberated on its jurisdiction over Israel, in an unprecedented move seven ICC member states petitioned against the legitimacy of the proposed legal process. Now is the time for all democratic governments, in their own interests as well as Israel’s, to stand up to this legal perversion which threatens to do untold damage to global security.

Image: Greger Ravik/Flickr