ICC risks its credible reputation with warrants against Netanyahu and Gallant – editorial

November 21, 2024 – the day the International Criminal Court in The Hague issued arrest warrants for alleged war crimes against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant – will go down as the day that led to the demise of the ICC itself.

Not the demise of Israel – as some of the enemies of the Jewish state fantasize the decision will expedite – but rather of the ICC itself.

Why? Because this decision will be seen by reasonable people around the world – and there are reasonable people around the world – as a farce, a joke, a miscarriage of justice. The authority of courts, all courts, rests in the degree of credibility it has in the eyes of those it is meant to serve.

The decision to issue an arrest warrant for Netanyahu and Gallant for fighting a terrorist army that openly states it wants to destroy the Jewish state and which started this war with a brutal orgy of violence worthy of the Middle Ages and Nazi Germany is something that will ultimately strip the court of any shred of legitimacy.

Just as the effectiveness and stature of the United Nations began to decline when Israel’s enemies turned it into a bludgeon with which to bash the Jewish State, so too will the ICC lose any relevance as a result of turning democratic Israel into a war criminal for fighting a just war for its survival.

Israel-Hamas war is wholly different

The kind of war Israel is fighting in Gaza – against a terrorist organization for which the norms of civilization have no meaning – is not covered in international law. The laws of nations are those that deal with war between states who act in accordance with the same law. It is not the same as the situation Israel is in, where one side is a state bound by international law and the other side is a terrorist army hiding behind civilians and intentionally drawing fire toward civilians as a tactic of war.

The ICC was established by the Rome Statute in 2002 to ensure accountability and prevent atrocities by providing a forum for justice when national courts are unable or unwilling to act. That is definitely not the case in Israel.

Whether or not the government erred by not setting up a Government Commission of Inquiry into October 7 and the aftermath is debatable. There is no doubt that Israel has an independent judiciary that holds its citizens – including its highest officials – accountable for misdeeds.

The ICC rests on the principle of complementarity: the idea that the court respects the independence of national legal systems by letting domestic courts investigate and prosecute crimes. It is this principle that kept the court from ever before issuing an arrest warrant against the leader of a democratic country. Democratic countries have courts that can –  and do –  police themselves.

That the court is now going after leaders of a democracy may lead to other countries leaving the court, fearful that they too – in a battle with terrorists, such as ISIS, for instance – will be accused of war crimes.

Incoming US Senate Majority Leader John Thune gave voice to such fears on Wednesday, a day before ICC prosecutor Karim Khan  –  himself under investigation for sexual misconduct  –  issued the international arrest warrants.

Calling the ICC’s pursuing warrants against Netanyahu and Gallant “outrageous” and “unlawful,” Thune said “the ICC’s rogue actions are a threat to our ally Israel and, left unchecked, can pose a threat to America in the future.”

How so? Because someday a prosecutor may use this as a precedent to go after American leaders or soldiers battling terrorists in an urban setting somewhere around the world.

“The House of Representatives has already passed a bill sanctioning the ICC,” Thune said, calling on current Senate Majority Leader Chuck Schumer to bring that bill to the Senate for passage. “If he refuses to act, our Senate Republican majority next year will. We will stand with Israel and make this and other supportive legislation a top priority in Congress.”

Incoming US National Security Adviser Rep. Mike Waltz of Florida said on social media that the ICC has no credibility and these allegations have been refuted by the US government. “Israel has lawfully defended its people and borders from genocidal terrorists. You can expect a strong response to the antisemitic bias of the ICC and UN come January.”

Such a reaction will undoubtedly ripple through other Western democracies and severely degrade the authority and reputation of the ICC.

Israel will survive this scandalous decision; the ICC may not.