On Nov. 21, the pre-trial chamber of the International Criminal Court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant.
The warrants allege that Netanyahu and Gallant committed war crimes and crimes against humanity during the ongoing Israeli offensive in Gaza, including the intentional use of starvation as a weapon and the deliberate directing of attacks against civilians.
Although the arrest warrants were under “consideration” by the ICC for nearly six months, the decision to issue them came as no surprise. Most observers expected the warrants to be issued. It was only a question of when. For whatever reason, the pre-trial chamber wizards of the ICC decided that last Thursday was as good a day as any to try to make news.
Israel decried the decision. It was also criticized by the Biden administration and numerous members of Congress. The criticism is well-taken.
The ICC is supposed to execute the law with fairness and impartiality. It is a court with limited scope. It only deals with the most heinous of international war crimes and savagery that rise to the level of genocide and crimes against humanity. Those are horrific accusations which should not be invoked lightly. And when they are invoked, they need to be supported by highly specific, unimpeachable evidence that takes all factors of the challenged activity into account.
That does not appear to have been done here.
There are serious unresolved factual questions about what exactly has happened in Gaza. Moreover, the ICC tribunal appears to have ignored Hamas’ culpability for the Gaza war and Israel’s ongoing facilitation of food deliveries to Gaza. Instead, the ICC has engaged in a troubling politicization of its own investigatory process.
Moreover, the pretrial “findings” of the ICC are simply not credible. They rest, for example, on the disturbing conclusion that there are no reasonable grounds to believe that Israeli restrictions placed on humanitarian relief operations in Gaza were justifiable under international law. The dismissive nature of that conclusion exposes the panel’s failure to examine the evidence in the context of an ongoing, two-sided war in Gaza. Instead, the ICC blithely asserts that “[Israel’s] alleged crimes against humanity were part of a widespread and systematic attack against the civilian population of Gaza.”
We worry that the esteemed judges of the ICC have their ceremonial wigs on too tight. And that seems to be affecting their thinking.
Fortunately, the ICC is largely a paper tiger. It has no independent enforcement authority. And neither Israel nor the United States is subject to the ICC’s jurisdiction, since neither is party to the 2002 Rome Statute, through which more than 120 other states — including several allies of Israel — agreed to be members of the court.
Nonetheless, the ICC arrest warrants will further isolate Israel on the international stage and complicate some travel activity by both Netanyahu and Gallant.
This is the first time the ICC has issued an arrest warrant for the leader of a democratic country. We expect the ICC action to be a major challenge for the Biden administration in its last two months, a key issue for consideration for the incoming Trump administration and the subject of focus in Congress.
It’s time to call an end to the charade of justice being played out in The Hague. ■