The ICC’s Arrest Warrants

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On November 21, 2024, the International Criminal Court (ICC) issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant on charges of alleged war crimes and crimes against humanity. The ICC diabolically transformed the legitimate military operations that the Israeli Defense Forces (IDF) conducted in defense of the Israeli people following the Palestinian terrorists’ genocidal attack inside Israel on October 7, 2023 into alleged international crimes themselves. This morally repugnant action is an example of how the globalists use international judicial bodies and other international institutions, most notably the United Nations, to advance their pro-Palestinian, anti-Semitic agenda.

The ICC also issued an arrest warrant for Hamas’s military commander Mohammed Deif, in a cynical attempt to demonstrate that it was “impartial.” What this kangaroo court displayed instead is moral equivalence. It equated Hamas’s deliberate murder, torture, rape, and abduction of innocent civilians, including women and children, with Israel’s military response in self-defense to ensure that such a genocidal rampage on Israeli soil can never take place again. Fortunately, the IDF had already delivered the retributive justice that Deif deserved with a lethal airstrike.

The ICC Chief Prosecutor Karim Khan claimed that “The International Criminal Court is a child of Nuremberg.”  Khan outrageously compared the ICC to the Nuremberg tribunals that had tried Nazis for the genocidal crimes they committed during the Holocaust. He did so while trying to defend the ICC’s arrest warrants to German journalists during his visit to Nuremberg itself. Mr. Khan’s allusion to the Nuremberg trials of Nazi leaders in defending the ICC’s arrest warrants issued against Israel’s leaders insulted the memory of the approximately six million Jews who perished during the Holocaust.

As Irwin Cotler, a prolific writer about the Holocaust, genocide, and international humanitarian law, observed, “the Holocaust was uniquely evil in its genocidal singularity, where biology was inescapably destiny, a war against the Jews in which, as Nobel Peace Laureate Elie Wiesel put it, ‘not all victims were Jews, but all Jews were victims.’”

The Jewish population was helpless as the Third Reich’s genocide proceeded relentlessly and ever so efficiently. The Germans brutally crushed any scattered signs of resistance, most notably the Warsaw Ghetto Uprising.

But survivors of the Holocaust concentration camps proclaimed after the horrors of World War II came to an end, “Never again.” The independent Jewish state of Israel was born in the wake of the Holocaust. Jews all over the world believed they finally had a safe place to live if they wished, which could protect them from the persecution Jews have suffered for more than two millennia.

The truth is, however, that Israelis cannot live peaceful, secure lives even in their own country. They live in an extremely dangerous neighborhood, surrounded by implacable enemies who seek Israel’s elimination as a Jewish state. That is the day-to-day reality that Israeli Jews have faced from the day that Israel declared its independence on May 14, 1948 to the present day.

The October 7^th 2023 massacres that Hamas and the Palestinian Islamic Jihad committed inside Israel killed more Jews in a single day than on any single day since the Holocaust. And a senior member of the Hamas terrorist organization vowed that, if given the chance, “there will be a second, a third, a fourth” October 7^th style attack. “Israel is a country that has no place on our land,” this bloodthirsty official said. “We must remove it because it constitutes a security, military and political catastrophe to the Arab and Islamic nation.”

Israel’s leaders had the legal duty to defend their own people who legitimately feared for their lives and for the Jewish state’s continued existence after the Palestinian terrorists’ October 7^th genocidal rampage and vows to strike again. The ICC demonstrated its callous indifference to the Israelis’ plight when it decided to prosecute Prime Minister Netanyahu and former Defense Minister Gallant for fulfilling their responsibility to protect their own citizenry from attempted extermination by fanatical terrorists.

Mr. Khan, who is being investigated himself for his alleged sexual misconduct, claimed in his statement regarding the issuance of the arrest warrants that “international humanitarian law must be upheld in all circumstances through fair and impartial judicial processes.”

In pursuing the arrest warrants against Israel’s leaders in the first place, Mr. Khan threw any semblance of fairness and impartiality overboard. His anti-Israel bias is reflected in work that he has done with Palestinian defense in the past. Moreover, according to international law expert Professor Eugene Kontorovich, head of the International Law Department at the Kohelet Policy Forum, at least some of the outside experts whom Khan chose to advise him have displayed strong anti-Israel bias for years. One of the advisers, for example, is Professor Kevin Jon Heller, who proudly supports the BDS movement against Israel and wrote in 2015 that Israel is “committed to systematically depriving the innocent of their most basic rights.” Another of Khan’s advisers, Baroness Helena Kennedy, who is a member of the British Labor Party and the House of Lords, urged the ICC to investigate Israel’s treatment of Palestinian civilians back in 2019. That was long before the commencement of the current war in Gaza.

“Mr. Khan’s selection of heavily prejudiced advisers calls into question the weighing of the evidence and credibility determinations that underlie the allegations,” Professor Kontorovich concluded.

Article 42(7) of the Rome Statute that created the ICC provides that “Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground.” Mr. Khan is not impartial by any stretch of the imagination, as demonstrated by own past work on behalf of the Palestinian cause and his choice as the ICC Chief Prosecutor of anti-Israel advisers. By not recusing himself from participating in any case involving Israel, Mr. Khan violated the spirit, if not the letter, of Article 42(7).

Mr. Khan also violated Article 54 of the Rome Statute pursuant to which the prosecutor is required to “enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State…”

Mr. Cotler – the Holocaust, genocide, and international humanitarian law expert quoted above – tried to facilitate meaningful cooperation between Mr. Khan and Israel’s leadership. But it was all for naught after the ICC Chief Prosecutor pulled the rug out from under him.

“At the request of the special prosecutor, Karim Khan, and with the cooperation of the prime minister of Israel, I helped facilitate meetings between them,” Mr. Cotler explained. “Well, on the very day that the ICC’s team was supposed to come to Israel … Karim Khan, the special prosecutor, peremptorily cancelled that visit and on the same day held a press conference … calling for arrest warrants against both Netanyahu and Gallant, along with Hamas leaders. To me, that was a breach of his own principle of cooperation, let alone also the principle of complementarity,” Mr. Cotler said.

The Rome Statute provides in Article 1 that the ICC “shall be complementary to national criminal jurisdictions.” This means that the courts at the national level must be given the opportunity to deal with cases of serious criminal violations, including violations of international law. If such courts are unwilling or unable to do so, the ICC is permitted to step in under certain circumstances as the court of last resort for the most serious crimes of international concern.

Israel has an independent judiciary that is both capable and willing to adjudicate alleged criminal violations even by the prime minister himself who is being tried on alleged corruption charges. The Israeli judiciary has also meted out harsh punishments to Jews convicted of murdering Palestinians, including a Jewish extremist who was sentenced to serve three life sentences for killing a Palestinian family in a firebomb attack. The IDF thoroughly investigates alleged misconduct by its soldiers that is overseen by Israel’s civilian justice system. IDF soldiers have been imprisoned for unjustified killings or injuries of Palestinians.

Israel has claimed that Mr. Khan violated the Rome Statute and ICC precedent by failing to provide “sufficiently specific” information about the crimes he was investigating in a timely fashion before he sought the arrest warrants. The lack of such specifics deprived Israel of the opportunity to inform the ICC that it was willing and able to carry out its own investigation of the alleged crimes and pursue any resulting prosecution in its own national courts.

The arrest warrants are legally flawed for an even more fundamental reason. Israel is not a state party to the Rome Statute that established the ICC and does not recognize the jurisdiction of the ICC to adjudicate any criminal complaints against any Israeli citizens. Moreover, the United Nations Security Council did not refer the alleged crimes stemming from the conflict in Gaza to the ICC Chief Prosecutor pursuant to Article 13 of the Rome Statute.

Thus, the ICC had to concoct a way to insert itself into adjudicating alleged criminal wrongdoing in the Gaza war. It did so by sprinkling “statehood” fairy dust on the Palestinians, giving them standing as an ICC member “state” to weaponize the ICC against Israel for its alleged crimes within the Palestinians’ supposedly “sovereign” territory of Gaza. It is all smoke and mirrors designed by a Kafkaesque court to accuse Israel’s leaders fighting terrorists who have committed war crimes and crimes against humanity of committing those crimes themselves.

In a nutshell, the hopelessly partial ICC Chief Prosecutor who sought the arrest warrants against Israel’s leaders and the ICC’s Pre-Trial Chamber that approved the arrest warrants grossly overstepped their legal authority. The ICC’s persecution of Israel’s leaders proves that it is not the child of the Nuremberg court, as ICC Chief Prosecutor Khan absurdly claimed. To the contrary, in Prime Minister Netanyahu’s words, the ICC is “a biased and discriminatory political body” whose “antisemitic decision… is equivalent to a modern-day Dreyfus trial.”