End the International Criminal Court

National Review Online

Tuesday, May 21, 2024

 

The International Criminal Court just took, one hopes, a massive step toward its own demise by seeking warrants for the arrest of Israeli prime minister Benjamin Netanyahu and defense minister Yoav Gallant.

 

The team of ICC prosecutor Karim Khan alleges that Israel has “intentionally and systematically” deprived Palestinians of food, water, electricity, and other necessities during its campaign in Gaza and that it is carrying out a “widespread and systematic” attack on Palestinian civilians.

 

These are absurd assertions considering Israel’s consistent efforts to get aid into the territory and its painstaking work to minimize civilian harm — a regime so stringent that it likely exceeds what Washington has done in its own campaigns against ISIS and al-Qaeda.

 

It’s also morally abominable that Khan announced his intent to prosecute top Israeli officials alongside his announcement that he’s seeking the arrests of Hamas chief Yahya Sinwar, Hamas commander Mohammed Deif, and Hamas political bureau head Ismail Haniyeh. That decision supports the idea that Khan is seeking to create an equivalence between Israel and Hamas and that he’s being driven by political considerations.

 

Primarily, though, the application is a problem because the ICC has no right to insert itself into this matter.

 

It doesn’t have jurisdiction here. Israel is not party to the ICC’s Rome Statute. Khan’s petition concerns a fake case brought forward on the specious legal theory that “Palestine,” a fake country, can join the ICC — a fake global court.

 

Even by the court’s own standards, this application for arrest warrants is wrong. Under the court’s principle of complementarity, the ICC claims that it defers to the national authorities of the states that it investigates for possible crimes.

 

Moreover, Israel clearly has a competent, independent judiciary that is willing to investigate prospective war crimes. Whatever the merits of those cases, the Israeli courts have also demonstrated a willingness to go after the country’s leaders, including Netanyahu, on other matters. The ICC is intervening here without providing any explanation of why it believes that other avenues at the national level have been exhausted. It’s a transparently political move.

 

Already, Khan’s application has managed to turn the ICC into a rhetorical punching bag for the Biden administration, which, up until now, hasn’t found an international organization about which it can say a negative word. Yet Monday afternoon, President Biden called Khan’s equivalence of Hamas with top Israeli leaders “outrageous”; Secretary of State Antony Blinken referred to it as “shameful.”

 

Those statements were unusually strong (expectations were low). But as with other aspects of the White House’s handling of the U.S. alliance with Israel, solid rhetoric is unlikely to be matched with decisive action. Biden, after all, rolled back the Trump-era sanctions on Khan’s predecessor, which had also been imposed over various investigations into alleged war crimes carried out by Israel and the United States. Note that neither Blinken nor Biden promised any imminent action.

 

What they should do is immediately impose sanctions on Khan and senior ICC staffers connected with this case, banning them from the U.S. and freezing any assets they have here.

 

It’s revealing that the White House didn’t have these measures lined up ahead of Monday’s announcement; the court had been poised to do this for weeks. Clearly, the administration has little interest in protecting Israel from this lawfare campaign, so Congress needs to force its hand with any of the proposals Republican lawmakers have crafted in recent weeks. It should also pass legislation to force Biden to sanction financial institutions that work with the ICC.

 

Sanctioning the ICC is just the start. Khan might have signed a death sentence for his court. The next Republican president, whether that’s Trump in November or someone else down the line, is now almost certain to build out a comprehensive diplomatic campaign to end the ICC. This would start with pressuring U.S. allies who provide the bulk of the court’s funding to stop doing so. The goal should be to end the court.

 

Make no mistake, America should care about Khan’s case against Israel because an unaccountable international bureaucracy is waging a political campaign against one of its allies. But it’s even more worrying because this could be a dry run for a similar effort that unjustly and illegitimately targets Americans.