The International Criminal Court’s Folly

By Eugene Kontorovich

Wednesday, November 27, 2024

 

The warrants issued by the International Criminal Court against Israel’s prime minister and former defense minister represent many historic firsts. They would be the court’s first prosecutions of leaders in a liberal Western democracy, and represent the first time anyone has been charged with the “crime of starvation”; the first time the court has accused a country of war crimes during a defensive war against an external invader; and the first prosecution of a non–member state at the bequest of a member that is not generally recognized as a state.

 

For all of these juristic innovations, the warrants also represent something entirely familiar: an international institution, created to serve high and noble purposes, succumbing to the temptation of pursuing an anti-Israel agenda. This phenomenon is on routine display at the United Nations’ General Assembly and Human Rights Council.

 

The charges are baseless as a matter of law and fact, issued by a court with no jurisdiction, alleging as crimes things that simply never happened, while ignoring settled international law and practice. But before turning to the Israel warrants, we need to understand what the ICC really is.

 

The ICC, seated in the Netherlands in The Hague, was created in 1998 by a treaty known as the Rome Statute, to provide a forum where the perpetrators of the world’s worst atrocities could be prosecuted, a kind of permanent Nuremberg Tribunal. The new court would not impinge upon national sovereignty, because it would have jurisdiction only over countries that voluntarily joined. In the optimistic decade between the fall of the Soviet Union and the attacks of 9/11, some hoped that the court would lead to an “end to impunity” for mass atrocities—such as the Bosnian and Rwandan genocides—and lead to a “rules-based international order.”

 

That dream has never seemed further off. A quarter century later, most of the world’s population lives in countries that never joined the court—including the United States and China, India and Pakistan, and pretty much the entire Middle East. Many of the countries that joined the ICC face little serious prospect of engaging in armed conflict; for them, membership entails little risk, and is merely a feel-good ritual.

 

Despite a roughly $200 million annual budget, the tribunal has convicted only six people of perpetrating the mass atrocities it was created to address. Numerous high-profile cases have collapsed. Its indictments against incumbent dictators such as Russia’s Vladimir Putin have been laughed off. The current and past presidents of Kenya both rode ICC indictments to reelection. (The cases against them had been dropped because of what the ICC’s presiding judge described as “witness interference,” a claim the ICC disputed.) Two countries have quit the court altogether, shaking belief in the inevitable, gradual expansion of The Hague’s writ.

 

The composition of the ICC’s membership has created a serious problem for the court. The largest concentration of member states is in Africa, but every defendant tried by the Court has been a sub-Saharan African, leading to a threat of mass walkout by African Union states.

 

The charges against Israel can be understood, in part, as a solution to this predicament. They serve to deflect criticism of the court as a Western tool, and were received with enthusiasm by international NGOs. And they come with a major advantage: As a non–member state, Israel can’t quit in protest.

 

But that also means the court should not, by rights, have jurisdiction over Israel. To overcome this obstacle, the court decided that Palestine is a state that can join the court, despite not satisfying the legal criteria for statehood. Such an exception has not been made for any other entity. It also controversially decided that Gaza was part of that state, in addition to the West Bank, despite each having had an entirely different government for nearly two decades.

 

Then the ICC ignored a second limitation on its reach. Its governing statute instructs it to intervene only when a state is “unwilling or unable” to prosecute crimes by its leaders, in order to shield them from responsibility. Not only is Israel’s attorney general willing to prosecute Prime Minister Benjamin Netanyahu—she is already doing so in several high-profile cases involving alleged corruption.

 

The more likely reason the Israeli justice system is not pursuing the charges brought by the ICC is because they appear to be unfounded. The main thrust of the court’s claims (the details of which remain sealed by the tribunal) is that Israel purposefully starved the people of Gaza, as well as restricted electricity to the area. Yet in June, the UN’s own hunger watchdog released a report denying that famine occurred during the period addressed by the prosecutor. Nor does Israel’s allowing shipments of food into the Gaza Strip, which one estimate placed at more than 3,000 calories a day per person, suggest an attempt to starve the population, even if conditions in parts of the Strip have been dire.

 

Hamas controls food distribution within Gaza, and has been seizing aid convoys. Aid groups complain that Israel has been constricting the flow of food into Gaza; Israel counters that aid has piled up on the Gaza side of the border without distribution. Moreover, international law allows for besieging an enemy force, even if civilians are within the besieged area. Exceptions allow for the provision of essential medical supplies, but even those exceptions are suspended when there is a credible fear of “diversion” to the enemy force, as there surely is with Hamas. If anything, Israel is being blamed for Hamas’s starvation of its own population.

 

Supporters of the ICC should be embarrassed that its decision was cheered by Hamas and Hezbollah. Those groups understand that the court’s indictments of Israeli officials will make it more difficult for Israel to defend itself. Yet the ICC cannot deter dictators and warlords, because they can fall into its hands only if they lose power. If they remain in power despite their atrocities, a minor crimp in their travel plans is more than offset by the power and wealth they will enjoy.  The three Hamas leaders indicted by the tribunal have already been killed by Israel; they might have preferred a cell in The Hague.

 

Leaders of democracies must make different calculations; they rotate out of power, and their private benefits in office are relatively minimal. ICC warrants against them, even if entirely unjustified, could deter them from vigorously and lawfully prosecuting defensive wars, for which their civilian populations would pay the price. Thus, the prosecutions of Israeli officials will actually make war crimes more likely, by tipping the scales against liberal democracies.

 

All of this poses a threat to the U.S.—as a non–member state that engages in a high level of global armed conflict—as well as to its leaders and soldiers. The ICC could recognize the Islamic State in the Levant as a “state” for purposes of its jurisdiction, just as easily as it recognized Palestine, and investigate American officials for alleged crimes during the U.S.-led campaign against the terror group. That campaign, started during Barack Obama’s presidency, included battles in Mosul, where an effort to evict approximately 5,000 ISIS fighters in the city led to perhaps 10,000 civilian deaths and the destruction of the city. The ICC did not have jurisdiction, because Iraq had not joined the treaty—but the Palestine precedent shows that this is not an insurmountable problem.

 

The ICC’s disregard for law also threatens American troops on counterterror missions in countries that have joined the ICC. Washington has long relied on treaties signed with such countries as a safeguard against Hague jurisdiction, but the tribunal’s boundless view of its powers gives no assurance that those treaties will be honored.

 

This is not far-fetched: The ICC is already investigating alleged U.S. crimes in Afghanistan. Indeed, the ICC prosecutor recently suggested that sitting U.S. senators may have committed crimes against the court’s charter by speaking out in support of bipartisan legislation that would impose sanctions on the body.

 

Not all efforts to solve the world’s problems work—some backfire. The high aspirations with which the tribunal was founded should not shield it from the consequences of its decision to pursue other agendas.