Kangaroo Antics at the ICC

The bad news continues to roll in for the beleaguered International Criminal Court. On Thursday, US Secretary of State Marco Rubio unveiled new sanctions against four ICC judges for their part in improperly targeting non-member states, including Israel and the United States. Two weeks before that announcement, ICC prosecutor Karim Khan stepped down from his role as prosecutor amidst sexual misconduct allegations and reports that he timed the issuance of arrest warrants against Israeli leaders to shield himself against claims of sexual assault.

And in a unanimous decision earlier this spring, the Appeals Chamber of the ICC issued a scathing rebuke of the Pre-Trial Chamber’s handling of the issuance of those warrants, remanding the case back to the Pre-Trial Chamber to consider whether it even has jurisdiction over the Israel-Hamas war at all.

Some background is helpful in understanding these developments. Leading into the Israel-Hamas war, the ICC had largely squandered the goodwill it had at its founding. In the quarter century since its inception, the court has secured just 11 convictions, almost exclusively against African warlords who were already widely condemned internationally. The ICC has never been about groundbreaking justice. This despite an ever-ballooning budget that stands at $220 million for 2025. With a bloated budget and little to show for its 25 years of work, the ICC was in dire need of image rehabilitation.

The Israel-Hamas war offered an irresistible opportunity. As public relations strategies go, targeting Israel is a reliable form of image rehabilitation.

Consider the media spectacle and political posturing. In a marked departure from the ICC norm of seeking arrest warrants in private applications to the court, Kahn announced that he was seeking warrants against Israeli leaders in an exclusive interview on CNN with Christiane Amanpour. He made his decision to seek warrants on the advice George Clooney’s wife, Amal Clooney.

This media campaign pushed the matter into the court of public opinion and likely fast-tracked the Pre-Trial Chamber’s issuance of warrants. So much so, in fact, that the Chamber did not even consider the jurisdictional concerns that Israel raised and that were the subject of the Appeals Chamber’s rebuke. Indeed, it could not have, because had the Pre-Trial Chamber given due consideration to those concerns, it would not have issued the warrants, and the PR opportunity to jump on the Israel-hating bandwagon would have been lost.

In prioritizing image rehabilitation and PR over law, the ICC failed in the most basic question any court must ask: does it have the power to make a legal judgment over the parties or over the matter? This is called jurisdiction. Israel is not a member of the ICC, and the ICC has no independent jurisdiction to open a matter of its own accord. Rather, a member state must delegate its own jurisdiction to the ICC. On both points, the ICC’s case against Israel fails: Palestine is not a state, and the Palestinian Authority lacks jurisdiction over Israelis.

The Palestinian Authority joined the ICC in 2015, even though the United Nations does not recognize the Palestinian Territories as a state. Nor could it, as the well settled international law of the Montevideo Convention has four requirements for statehood, none of which the Palestinian Territories meets: (1) a permanent population; (2) a defined territory; (3) a government with control over the territory; and (4) capacity to enter into relations with other states. Of the four, the most glaring deficiency is the third.

In 2021, the ICC affirmed that it recognizes the Palestinian member state to encompass the West Bank, the Gaza Strip, and East Jerusalem. But there is no single government that controls this territory, as the Montevideo Convention requires. Rather, Israel and the Palestinian Authority share governance over East Jerusalem and the West Bank, while Hamas governs the Gaza Strip. Only under the convoluted, outcome-determinative logic of the ICC could it be the case that Palestine is a state with jurisdiction over Israelis’ conduct in Gaza, even though the Palestinian Authority is not the government of that state and certainly not of Gaza.

But even assuming the mind-bending logic required to find that Palestine is a state, and let’s assume even further that the Palestinian Authority is the government of Gaza, such a state has no jurisdiction over Israeli nationals to delegate to the ICC. Nemo dat quod non habet—one cannot give what he does not have.

The Oslo Accords created the Palestinian Authority. Under the same agreement, the Palestinian Authority agreed to relinquish criminal jurisdiction over Israeli nationals. One cannot recognize the part of the Oslo Accords in which Palestinians agreed to establish the Palestinian Authority but ignore the part of the Oslo Accords in which Palestinians agreed to disclaim jurisdiction over Israelis. Either the Oslo Accords do not control, in which case there is no Palestinian Authority that can refer a case to the ICC, or the Oslo Accords do control, in which case the Palestinian Authority has no jurisdiction to delegate to the ICC. There is simply no credible argument that the ICC has jurisdiction over Israel in this context. Rather, this entire charade is a naked, political weaponization of international law against a desirable target.

These legalistic questions of jurisdiction are not merely of academic interest. The unfounded demonization of Israel has real consequences—from the firebombing of elderly Jews, including a Holocaust survivor, on the streets of Colorado by an assailant shouting “Free Palestine” to the fatal shooting of two Israeli embassy workers in Washington DC by another assailant shouting “Free Palestine,” to the regular indignities that Jews face on the streets of our cities and on the campuses of our universities by so-called “activists.” Until the ICC decides to uphold its own commitment to “independent and impartial justice” and engage in actual legal analysis instead of inciting mob mentalities, those like Marco Rubio will continue to take notice and the bad news for the ICC will continue to roll in.