Article published in The Spectator, 31 August 2024. © Richard Kemp

The actions of the International Criminal Court’s Chief Prosecutor, Karim Khan, will deprive Israel of its sovereignty and undermine the West’s defence against terrorists and despots. The US must put a stop to it.

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 arrest warrants he demands. Most of these submissions questioned the ICC’s jurisdiction over Israel.

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. That year, ‘Palestine’ became a member of the ICC, even though it is not a full member state of the UN. In order to secure jurisdiction over Palestine, and by extension over Israel too, the court unilaterally and without any legal authority 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 goes on to dismiss all concerns over the fundamental principle of complementarity. What does that mean? It 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. He argues now, though, 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’. That is certainly not what was intended in the Rome Statute.

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 plagued with 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 the war (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 that 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.

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

If the ICC’s ironically 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 arrest bid in May but seem unwilling to go beyond words. Previously, the US 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 urgency. As with so much else in this anti-western political warfare campaign, Israel is the canary in the coal mine. 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.

This piece was co-authored by Rafael Bardaji, a former national security adviser to the Spanish government.

Image: Karim Khan. Source: Wikimedia Commons