The International Criminal Court (ICC) had noble aims – or so we thought. Before heading off to Rome to watch 120 states sign the court’s founding statute in 1998, I took the BBC’s cameras to the killing fields of Sarajevo to show viewers why tyrants from the former Yugoslavia should not be allowed to escape justice.
What I hadn’t expected to find when I arrived at this United Nations diplomatic conference was that the world’s first permanent international criminal court was being constructed not by governments but by non-governmental organisations (NGOs).
In 1995, a Coalition for the International Criminal Court was founded by 25 civil society organisations. As the coalition now recalls, it “ensured that states negotiated a strong treaty”. These NGOs provided briefing papers to national delegations and raised concerns when their objectives were watered down. “Civil society organisations played a key role in advocating for creating the ICC,” the court acknowledged at a meeting with NGOs in 2019.
Israel and the United States recognised almost from the outset that this was turning into warfare – politics by other means.
And so it has proved. In more than 20 years the court has had no measurable impact on tyrants. Now it is targeting the one democracy that has done more than any other to rein in Iran and its terrorist proxies.
Some lawyers were not taken in. In an academic paper called The Self-Defeating International Criminal Court, Professor Jack Goldsmith, now of Harvard Law School, wrote a few months after the court was established that predictions of its effectiveness were unrealistic dreams. “An ICC without US support – and indeed, with probable US opposition – will not only fail to live up to its expectations,” Goldsmith argued. By discouraging the United States from engaging in actions to protect victims, it might even increase impunity.
At a superficial level, the ICC looks much like any other criminal court. But too much is expected of a prosecutor who is responsible for investigating crimes as well as bringing charges. Like his two predecessors, Karim Khan KC has failed to measure up to the job. With judges of varying quality mostly willing to do his bidding, the court seems to be run by an unseen bureaucracy.
How else can we explain how it handled Khan’s request six months ago for arrest warrants against Benjamin Netanyahu and Yoav Gallant? Presented with the most important case the court has ever considered, you would expect the three judges on its pre-trial chamber to hear oral argument at a public hearing. At the very least, you might have thought the chamber would publish a reasoned judgment taking account of the written legal submissions it had invited – more than 100 in all. But on the fundamental issue of jurisdiction, the court produced a judgment of just eight operative paragraphs.
What evidence did the chamber have for finding reasonable grounds to believe Israel’s prime minister and his former defence minister “intentionally and knowingly deprived the civilian population of Gaza of objects indispensable to their survival”? Why did it disregard the principle of complementarity, under which the ICC steps in only when states have shown themselves unwilling or unable to investigate and punish their own citizens?
How did it justify its implicit conclusion that Gaza, a terrorist fiefdom, was a fully functioning state that had accepted the ICC’s jurisdiction? How did it deal with the argument that the Palestinian Authority had never been granted criminal jurisdiction over Israelis and so could not delegate it to the court?
And why did it find reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility for the war crime of starvation but not the crime against humanity of extermination?
The answer to these and countless other questions is that we don’t know. All we have to go on is a press release. Real courts deliver reasoned rulings, not superficial summaries. A real chamber would have explained why one of its members asked to be excused after five months of deliberations “based on medical grounds and the need to safeguard the proper administration of justice”, leaving her successor less than four weeks to form an independent judgment on the demonstrably false and tendentious material the prosecutor had chosen to present.
The only significant decision announced by the pre-trial chamber was that Israel’s challenge to the court’s jurisdiction had been premature. “Israel will have the full opportunity to challenge the court’s jurisdiction and/or admissibility of any case if and when the chamber issues any arrest warrants,” it said in a judgment dated November 21. But that was the very date, according to the court’s press release, that it issued the warrants. It was not “if and when” – it was a done deal.
It’s perfectly true that the court’s governing statute says that challenges to admissibility or jurisdiction “may be made by an accused or a person for whom a warrant of arrest has been issued”. But the statute does not say that a challenge cannot be brought until after a warrant has been issued. Why wouldn’t a court want to resolve questions of admissibility or jurisdiction as early as possible? An arrest might turn out to be unnecessary, perhaps unlawful.
In a national court, a suspect can be arrested and bailed while police continue to gather evidence. But there’s no suggestion that this would happen here. The real reason for arresting Netanyahu would not be try him for what the prosecutor claims he has done. It would be to stop a democratically elected prime minister continuing to defend his country against a war of extermination. That’s not something any court should do.
Joshua Rozenberg is a legal commentator who writes at rozenberg.substack.com
