Judicial Activism in the ICC

Not fit for purpose.

I was housed in an asylum seeker’s center in 1992/93 in the Netherlands along with people from the former Yugosloavia, Sierra Leone, Liberia, Somalia, Sudan and a host of other nations that had simply collapsed into the most barbaric anarchy after the fall of the Soviet Union. Whatever passed for “institutions” in those societies had crumbled. Millions of people were displaced, massacred, starved and the horror of all of this was visible on the TV screens in the living rooms of those who won the Cold War. Western leaders understood the need to intervene and Western populations made it clear that while a limited number of refugees were welcome it was simply not realistic to absorb millions of impoverished people from war torn countries. The sensible thing was to salvage those nations by providing institutional support through international agencies led by the UN.

Helpfully, this UN-led international community provides for institutions of last resort: UNHCR and IOM to deal with the mass displacement, UNICEF, for when they are unable to adequately educate and vaccinate their children; the FAO for when countries need help in the fight against food insecurity; the International Criminal Court (ICC) for when domestic judicial systems are not up to the task of serving justice against the most malign. 

Unfortunately, these international institutions, complete with their rules and bureaucracies, have been turned into opaque, unaccountable tools to extract money and guilt trip rich countries into serving those responsible for the chaos to begin with.

On May 20th, Karim Khan KC, the International Criminal Court (ICC) Prosecutor, issued his statement for the “applications for arrest warrants in the situation of the state of Palestine.” Khan requested arrest warrants for leaders both of Hamas and of the Israeli state. This is an example, yet again, of the drawing of a false moral equivalence between the authoritarian leaders of a bloody terrorist group and the actions of a democratic sovereign state with strong rule of law credentials. And it is a further demonstration that the cult of international law – by which I mean the religious fervor with which people treat anything dressed up as law between states – has been captured by activists.

Source: The ICC. https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state

Yahya Sinwar (head of Hamas in Gaza), Mohammed Diab Ibrahim Al-Masri (Commander-in-Chief of the military wing of Hamas), and Ismail Haniyeh (Head of Hamas Political Bureau), were accused of war crimes and crimes against humanity including Extermination, Torture, Hostage-taking, and Rape from at least October 7th. At the same time, warrants were requested for the arrest of Benjamin Netanyahu, democratically elected Prime Minister of Israel, and Yoav Gallant, the Minister of Defence on the alleged grounds that they are responsible for the Starvation of Civilians, and directing attacks at civilian populations.

This tactic of lumping together members of a group who have minimal concern for their reputation amongst the international community and a democratic member of said community in order to be viewed as fair or impartial is nothing new. The same was done in 2019 when the previous activist Prosecutor, Fatou Bensouda, announced investigations into war crimes allegedly committed in Palestine. 

The problem is that the ICC is not fit for purpose. Or at least not for this purpose, anyway. To understand why, we need to get to grips with the raison d’etre of the court. 

The International Criminal Court came into being when the Rome Statute was signed on July 1, 1998 and began operations on July 1, 2002. The desire for it arose out the chaos and horror of both the Rwandan Genocide and crimes against humanity committed in the Yugoslavia. Israel is not a signatory. And for good reason. Along with the US, China, India, Turkey and 36 other states, they viewed the jurisdiction of a foreign court as an imposition on their functioning domestic courts and a curtailment of their sovereignty as a state. A number of these countries were also acutely aware that international organizations such as the ICC were capable of mission creep and capture by activists. Bill Clinton signed the Rome Statute but then did not submit it for Senate ratification. 

According to the Rome Statute, the International Criminal Court “is not a substitute for national courts” and “can only intervene where a State is unable or unwilling to genuinely carry out the investigation and prosecute the perpetrators.” In other words, the ICC is a potentially useful tool to ensure that justice is served in countries with severely limited state capacity and high corruption. Or in countries where the judiciary is captured as an arm of the executive and unable to try cases with impartiality and independence. This is why, of the 31 cases that have been brought before the ICC over the last quarter of a century, the vast majority have involved the dictators and warlords of African countries. 

Source: https://www.cfr.org/backgrounder/role-international-criminal-court#chapter-title-0-8

Neither of these are the situation in Israel, however. The Israeli Supreme Court is regarded by Jurists the world over as the leading example of judicial activism and the overextension of judicial review. In 2019 they indicted the sitting prime minister, with the trial continuing to this day, and in January of this year the Israeli Supreme Court managed to strike down legislation designed to curb its powers. If there is any criticism to be levelled at the Israeli legal system it is not that the courts are unable or unwilling to haul members of the government before them, but rather that they are too readily able to do so. The ICC was fundamentally not designed to deal with states like these.

But it has become embarrassed by this fact. The overrepresentation of African states in ICC cases has become a point of controversy in recent years with the African Union calling for a mass withdrawal of member states in 2017 to protest what it argued was an anti-african bias. Naturally, opposition to the court over the years was led by some of Africa’s most corrupt leaders – Zimbabwe’s Mugabe; Kenya’s Kenyatta; Chad’s Deby – leaders from countries with no effective judicial oversight. 

The previous Prosecutor, the Gambian Fatou Bensouda, began a campaign to address these fears in 2020 by beginning investigations of the USA in Afghanistan and opening a now closed preliminary investigation of Britain's actions in Iraq. As in the case of Israel, the flaw is plain to see. The USA has functioning domestic courts, and is not a signatory. Bensouda was sanctioned by the USA for her aggressive expansion of the court’s jurisdiction into US affairs. The UK too has a robust millenia-old legal tradition and in recent years has proved more than willing to prosecute soldiers for any misdeeds they may have engaged in. Just two months ago five soldiers were arrested in Britain on suspicion of crimes committed in Syria. It is clear that in these instances ICC involvement is posturing. 

But in Israel’s case the activism of the ICC might not be so much a deflection, but more of a concerted effort to weaponize the court to target the Jewish state. It appears to be the result of a long campaign from within the court.

The Rome statute is very clear that only states are able to join the ICC. However, after a failed 2009 attempt by the Palestinian Authority to join the court, the then Prosecutor, Luis Moreno Ocampo, launched an activist PR campaign to determine whether he should open an investigation. It involved NGO meetings, op-eds, and a UCLA law school forum, and allowed people to file briefs to the court. This 2011 Op-ed written by Mahmoud Abbas, leader of the Palestinian Liberation Organization, laid out the Palestinian strategy: that they should be recognized as a state such that they could internationalize the conflict and use the court as a prong in their campaign against Israel. 

In 2012, Fatou Bensouda took over and continued the PR effort to encourage the Palestinians to join the court. Later that year the UN General Assembly admitted them as a non-member observer state. Bensouda then used this as the pretext to allow the Palestinians to join the ICC and begin filing a request for a full investigation against Israel, even though Israel is not a member of the court. The prosecutor misinterpreted the Oslo Accords, under which the Palestinians do not have any criminal jurisdiction over Israelis, and, as such, should have no ability to delegate such jurisdiction to the court. 

It is only through concerted maneuvering, activism, and overambitious jurisprudential gymnastics by the court and from the Office of the Prosecutor that the ICC has been able to target Israel. Unsurprisingly, there has never been such an attempt to bring, say, Iran under the jurisdiction of the court. Iran, of course, conducts activities in a number of ICC signatory states but has never been pursued with the special zeal reserved for the state of Israel. Surprise, surprise.

At the end of the day, the accusations against Netanyahu and Gallant are refutable. The accusation that Israel is deliberately denying Gazans food and water is ridiculous. Where, before the war, Israel was only supplying 7% of the area’s water it is now supplying nearly half of the water in Gaza, as well as over half a million tonnes of food and medicine. 

The real issue is that an activist court with limited expertise – it is unclear whether they even have a military advisor – should not be attempting to micromanage the strategic response of a democratic sovereign state defending itself against a belligerent terrorist organization. Israel cannot be denied the chance to do what it needs to do to fight the kind of asymmetrical warfare emerging out of Gaza in protection of her own people. 

It is a dangerous precedent which is being set by those organizations captured by the cult of international law, which seeks to draw moral equivalence between the Hobbesian lawlessness of a territory governed by autocrats, and democratic countries with robust legal traditions seeking to determine their own destiny. 

And it is just bad law.