My Statement on ICC’s Issuance of Arrest Warrants

My November 22, 2024 statement:

The November 21 public statement by three ICC Pre-Trial Chambers judges announced, without releasing, their decision to issue arrest warrants for Israel’s Prime Minister and former Defense Minister in connection with Israel’s defensive military response to the grisly October 7 massacre of more than a thousand people in Israel perpetrated principally by Hamas, the openly genocidal de facto governing authority in Gaza. Unfortunately, the statement raises more questions than it answers, especially regarding the nature and reliability of the largely undisclosed evidence on which their decision is based.

Independent analyses, including those submitted to the judges and made public in August by the High Level Military Group and separately by the U.K. Lawyers for Israel organization, persuasively demonstrated that the publicly stated factual conclusions undergirding ICC Prosecutor Khan’s request for the issuance of arrest warrants were incorrect. In addition, although the amicus (friend-of-the-court) brief that I submitted the same month asked the judges to obtain explanations from Prosecutor Khan regarding numerous extremely serious irregularities and double standards evident in his office’s investigation and its request for issuance of arrest warrants (additional such deficiencies were identified in an important amicus brief subsequently submitted by U.S. Senator Lindsay Graham), the judges seem to have addressed none of them – precisely as Prosecutor Khan’s August 23 “responsive” brief had, quite outrageously, urged them to do.  In effect, Mr. Khan asked that his office be permitted to avoid timely accountability for its official actions.  Now the judges appear to have granted his unprofessional request.

As someone who, in my former official capacity at the U.S. Department of Justice (USDOJ), met several times with Mr. Khan in 2022-23, had high hopes for the success of his leadership, and participated in USDOJ’s efforts to assist his office’s investigations as authorized by Congress, it is enormously disappointing to see that his office’s actions in the Gaza matter and their unfortunate ratification by a three-judge panel have critically undermined the International Criminal Court’s credibility. Credibility, bolstered by appropriate transparency that is lacking in this instance, is indispensable to achieving the crucial and noble goal of the ICC, as set forth in the Preamble of its governing statute, “to guarantee lasting respect for and the enforcement of international justice.” Ironically, the handling of this matter to date instead serves the interests of those who have no regard for accepted principles of international justice and wish to see the Court fail as an institution.

Rosenbaum capsule bio:

Eli M. Rosenbaum, a graduate of the University of Pennsylvania’s Wharton School and the Harvard Law School, investigated and prosecuted war criminals and human rights violators for nearly 40 years as an attorney in the U.S. Department of Justice, including 16 years as the Director of its former Office of Special Investigations.  He is the longest serving investigator and prosecutor of such persons in world history.  Following Russia’s 2022 full-scale invasion of Ukraine, he was appointed by U.S. Attorney General Merrick B. Garland to launch and head the Justice Department’s War Crimes Accountability Team (WarCAT), to pursue justice on behalf of victims of Russia’s atrocity crimes.  Rosenbaum’s awards include the Attorney General’s Award for Exceptional Service (USDOJ’s highest award) and Ukraine’s Order of Merit, conferred last year by President Volodymyr Zelenskyy for support he rendered to Ukraine’s pursuit of justice following Russia’s 2022 invasion.  Rosenbaum retired from federal service in January of this year.