International court ignores the ground truths

Like many other international law practitioners and academics, I had great hope for the success of the International Criminal Court in its fight against the most serious international crimes. The need for a truly independent international mechanism to take up this fight was no more apparent to me than in my investigation of Russian military targeting practices in Ukraine over the last couple of years. Apart from a few hiccups over the years, in which the Court failed to pursue truly murderous warlords or gave them a get-out-of-jail-free card based on a narrow understanding of the facts on the ground, my hopes that the ICC would mature into a serious institution of justice remained.

On 21 November 2024, those hopes were dashed when the ICC issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. Of course, the usual academic talking heads in all things international law in Australia have come out spruiking the merits of this decision. These are the same talking heads who so very publicly got a preliminary measures decision of the International Court of Justice so dramatically wrong that the President of that Court had to correct them in the international media. Never let those pesky laws and facts get in the way of a good old-fashioned Israel bashing. It is undoubtedly no coincidence that the latest false narrative and misrepresentation of the law, spewed forth by these learned experts, also relates to Israel.

The merits of the present decision of the ICC being sold around town by these cloistered inhabitants of the land of academe are about as valid as the merits of their earlier analyses regarding the ICJ decision. The warrants themselves, and the processes employed in getting to the stage of issuing such warrants, are so manifestly flawed as to call into question the very legitimacy and credibility of the Court itself. The ICC is a creature of the international community and, as such, exists by the grace of that community. Legitimacy and credibility are the cornerstones of that existence.

In considering whether to join the ICC as a State Party to the Rome Statute, concerns were raised in Australia that the ICC would be ‘an unaccountable supranational body with unfettered power able to initiate capricious or politically motivated prosecutions’. In failing to abide by its own process and boundaries as agreed by the States Parties, in the granting of these warrants the ICC has enlivened these concerns. Once upon a time, Australia was a vocal advocate in support of the establishment of an international criminal court. With the signing of these warrants by the Pre-Trial Chamber, and the conduct of the ICC Prosecutor in abandoning any pretext of objectivity, the establishment of a truly independent and apolitical international criminal body has proven to be a fairytale – existing in some mystical dimension far removed from the harsh truth of war.

The manifest problems with these warrants go beyond non-compliance by the Court with its underpinning law and procedure. The problems are even more patent when viewed through the lens of reality in the battlespace – what we humble soldiers call the “ground truth”. In seeking these warrants, the presently beleaguered Prosecutor has failed to address the sheer scale and complexity of the urban war in Gaza – a complexity which Hamas exploits to its own strategic and operational advantage and to the detriment of its own people. In issuing the warrants, the Court has failed to take into account the fact that Israel is operating in the most complex battlespace on the planet whilst applying targeting processes and precautions against collateral damage which meet or exceed those of its democratic peers, Australia and the United States included, in terms of compliance with international humanitarian law.

It is difficult to ascertain this “ground truth” from cosmopolitan The Hague or from the hallowed halls of Australian law schools. In stark contrast to the ICC Prosecutor, military professionals and strategic academics have been on the ground and have ascertained the truth – a truth which is vastly different to the purported facts grounding these warrants and feeding the narrative of some of Australia’s less than objective academics in their regular critique of Israel. It is only by considering the ground on (and under) which this war is being fought that the Court and its Prosecutor will know the truth and that truth will set them free from their biases and possibly – just possibly – save the ICC from its own descent into illegitimacy and incredibility.