ICC Continues to Ignore and Deform the Rule of Law

I am hardly an apologist for Benjamin Netanyahu. His conduct since forming the current coalition, initiating the “judicial reform” controversy, and failure to protect Israeli citizens – and the hostages – before and since the October 7, 2023 pogrom are nothing less than despicable; he has forfeited any benefit of the doubt even as his nation faces another war started by Hamas and Hezbollah. Nonetheless, the actions of international tribunals, the International Court of Justice and the International Criminal Court, continue to demonstrate their bias and deformation of the rule of law.

On November 21, 2024, the ICC took three actions – all of which are inconsistent with any reasonable notion of a society or a court that is governed by the rule of law. These were not actions by the Prosecutor – currently under investigation for allegations of sexual misconduct – but by a unanimous 3-judge panel called Pre-trial Chamber I. Of note, but perhaps not of import given the same rulings, these actions were taken by a different set of three judges than those who issued the 2-1 decision on the ICC’s jurisdiction on February 5, 2021. My article from more than three years ago, The Legal Flaws of ICC’s Jurisdiction Ruling, discusses this ruling and the dissent in detail, with citations to the relevant authorities and paragraphs of the opinion.

1. Most highlighted in the press: it issued arrest warrants, previously requested by the Prosecutor, for Israel’s Prime Minister, Benjamin Netanyahu, and its now-fired Defense Minister, Yoav Gallant. The only information provided by the ICC about these warrants is a press release rather than the warrants themselves. The press release states that the warrants are “classified as ‘secret’, in order to protect witnesses and to safeguard the conduct of the investigations.” Note that there is no reference to any due process for the targets of the warrants. Despite this “secret” nature, the press release goes on to provide a detailed description of the “reasonable grounds” for the “alleged crimes,” consisting primarily of a one-sided recitation of supposed insufficient efforts to provide humanitarian assistance to the civilian population of Gaza.

This represents the first time in the ICC’s history that it has issued arrest warrants to governmental officials in a democracy.

The word “Hamas” appears exactly once in the press release, in a preliminary reference to “fighting between Israel and Hamas.” It contains zero references to the October 7, 2023, pogrom, to Hamas’s use of Gazans as human shields, to Hamas’s theft of humanitarian aid provided by Israel, nor to any other actions of Hamas whatever.

It says that the Court “declined to use its discretionary . . . powers to determine the admissibility of the two cases at this stage. This is without prejudice to any determination as to the jurisdiction and admissibility of the cases at a later stage.” What stage might this be is a mystery, since the Court refused to consider this issue in its February 5, 2021 ruling, which was strongly criticized by the dissent.

As that earlier ruling, the press release (since we do not have the actual Court documents), makes the same erroneous assumption that Israel is an “occupying power” and the applicability of the inapplicable 1949 Geneva Convention between “two High Contracting Parties” (without, of course, identifying who those High Contracting Parties might be). It goes on to misstate – we can only assume deliberately – the standards of International Humanitarian Law as requiring that Israel “facilitate relief by all means at its disposal,” and to “ensure that the civilian population in Gaza would be adequately supplied with goods in need.” (emphasis added). In fact, this has never been a requirement of IHL, as discussed in detail in  my earlier articles: ‘Yes, But’ and the Law of Armed Conflict: Sieges and Anthony Blinken’s false moral equivalency.

Remember, this is not the Prosecutor stating these things, but the Pre-Trial Chamber that has clearly abrogated its function as a panel of judges in favor of being co-prosecutors. The supposed “facts” to support “reasonable grounds to believe” that the lack of humanitarian aid was “calculated to bring about the destruction of part of the civilian population in Gaza” are entirely non-existent in the press release – just put out there unsupported. The Chamber found the Prosecutor’s material “only allowed it so make findings on two incidents that qualified as attacks that were intentionally directed against civilians,” (emphasis added) but of course no description or details about these two incidents or how any intent about them can be attributed to either Netanyahu or Gallant are provided.

In short, the press release is nothing less than unsupported slander and blood libel. It provides not one iota of evidence to support its statements, nothing that justifies issuing the warrants (especially since they were issued without one piece of investigatory effort to hear Israel’s side), and are well outside of any previously recognized notion of the rule of law as applied to the Laws of Armed Conflict/International Humanitarian Law. It is the very opposite of what jurists are supposed to do.

2. A ruling rejecting, again, Israel’s jurisdictional objection as premature. See Par. 16 and 17, with the panel noting “that States are not entitled under the Statute to challenge jurisdiction of the Court on the basis of Article 19 prior to the issuance of a warrant of arrest or a summons” and only “after the relevant Pre-Trial Chamber ruled that there reasonable grounds to believe that a person has committed a crime within the jurisdiction of the Court and issued a warrant of arrest or a summons to ensure the person’s appearance before the Court.”

In Paragraph 18: “The Chamber wishes to reassure Israel that it will not be estopped . . . from bringing a jurisdictional challenge . . . Israel will have the full opportunity to challenge the Court’s jurisdiction . . . if and when the Chamber issues any arrest warrants or summonses against its nationals.”

Yet, on the same day, the same exact panel of judges issued those very warrants of arrest. As discussed in my earlier article – when the earlier panel did this same kick the can maneuver – that jurisdiction cannot possibly exist, because the very document that created the Palestinian Authority (presumably the other “High Contracting Party”) expressly states that the P.A. has no criminal jurisdiction over Israelis – and therefore has no jurisdiction to delegate to the ICC. As the dissenter in the February 5, 2021, ruling pointed out: “Why postpone the in depth assessment? What is supposed to happen in the meantime? Which important legal provisions will be different from those that are already identified and were abundantly analyzed by the Prosecutor, the amici curiae and the victims’ representatives?” What was true in 2021 remains true today.

It is a complete abrogation of judicial authority for a Court that purports to be following the rule of law to issue warrants when it is clear beyond reasonable doubt that the Court has no jurisdiction. Israel cannot feel particularly “reassured” that such a Court will fairly consider its own jurisdiction when it has unjustifiably refused to do so at least twice.

3. A ruling rejecting Israel’s reminder that the ICC is a court of last resort, and that it is obligated by the Rome Statute that created it to exercise jurisdiction only upon a finding that the courts of the targeted nation are inadequate to properly investigate and prosecute such crimes by its citizens. Notably, the ruling makes no such finding. Rather, amazingly, the panel finds that Israel (in essence) waived the right to bring this assertion by not earlier bringing such a motion – even though it had done so repeatedly starting in at least April 2021. In paragraph 15, the ruling rejects Israel’s submission that a new situation had arisen since the October 7, 2023 attacks, holding that the post-10/7 conduct was “committed in the context of the same type of armed conflicts, concerning the same territories, with the same alleged parties to these conflicts,” such that “no substantial change has occurred to the parameters of the investigation into this situation.”

Yet the press release issued by the ICC specifically says that the arrest warrants are for crimes allegedly committed “from at least 8 October 2023 until at least 20 May 2024, the day the Prosecutor filed the applications for warrants of arrest.” To suggest that nothing has changed, as the ruling does, and then to issue warrants for only conduct that post-dates the 10/7 attacks is entirely inconsistent and illogical. It is, again, the exact opposite of the application of the rule of law.

As in the other November 21, 2024, ruling, Paragraph 16 again asserts that its ruling is without prejudice to the ability to “raise issues of admissibility” at the appropriate time, whenever that might be. Given the utter failure of the panel to follow the rule of law, Israel has reason to not feel particularly reassured that the ICC will finally do so when and if that time comes.

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One might arguably suppose that the two rulings discussed above relate to jurisdictional challenges during the mere “investigation” stage to which the panel refers several times, that the February 2021 was at the pre-investigation stage, and that the arrest warrants will perhaps finally trigger actual consideration of the merits of the jurisdictional arguments at last.

But every Court knows that it has obligations to avoid the appearance of impropriety. The issuance of the two rulings on the same day – and in the same press release – as the issuance of the arrest warrants creates that very appearance: that the ICC is a kangaroo court that has no interest in the merits of any issues before it, and was willing (indeed, perhaps even eager) to add more fuel to the anti-Israel fire of international censure.

This is not the rule of law – it is the rule of non-law.