Commentary on Political Economy

Thursday 2 May 2024


The International Criminal Court and Israel

The Israeli media is flush with reports of imminent ICC prosecutions, though there has been no official confirmation or denial. Mr. Khan’s candidacy was championed by his native Britain and supported by the U.S., so both countries may have influence if they warn Mr. Khan of what will happen if he proceeds. If they don’t, President Biden and Prime Minister Rishi Sunak risk finding Americans and Britons next under the gun.

The Israeli high command has prosecuted a limited war in self-defense against a genocidal terrorist group. Even as Hamas fights from beneath cities and behind human shields, and Egypt blocks refugees’ escape, Israel has a civilian-to-combatant casualty ratio that compares favorably with other urban conflicts.

Israel takes extraordinary measures to spare civilians, and it has disciplined and relieved officers for wrongdoing. It now facilitates a humanitarian surge—25,000 aid trucks to date—while Hamas steals aid and attacks distributors. What remains is war, the one Hamas started and is trying to win via international pressure. The ICC would subvert its own principles if it goes along with that strategy.

First, the ICC prosecutor is supposed to investigate before indicting a world leader, not the other way around. But a proper investigation of allegations by anti-Israel NGOs has been impossible while Gaza is a warzone and ICC staff are busy in Ukraine. An indictment now would be highly irregular and revealing of bias or great-power pressure.

Second, the ICC is supposed to complement national legal systems, intervening only when they are unable to investigate. Is that really the issue with Israel’s Supreme Court—too restrained, too pro-Benjamin Netanyahu? The Israeli court is famous for its judicial activism and antigovernment tilt.

Mr. Khan has said Israel has a “robust” system to investigate itself, and the International Court of Justice is also on the case. Far from the “court of last resort” it is meant to be, the ICC would be piling on. The abuse of its powers would cause Israelis to rally around the flag.

The biggest winner would be Vladimir Putin, whose ICC arrest warrant will have been cheapened. Another unintended consequence would be to blow up a U.S.-Saudi-Israeli deal. How could the Saudis make peace with an Israeli regime branded as war criminals?

International tribunals are poorly placed in wartime to meet the high evidentiary standards of a criminal trial. In the absence of evidence and arrests, the risk has always been that their decisions become performative and politicized rather than serious and legal.

There’s a reason the U.S. isn’t a party to the ICC and Congress has long authorized a President “to use all means necessary and appropriate” to resist ICC arrests of Americans and U.S. allies. Warding off prosecutions against a democratic ally is also necessary.

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Wonder Land: Columbia, Yale and NYU camp out while the rest of the U.S. flees from wokeness. Images: AFP/Getty Images Composite: Mark Kelly


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Appeared in the April 27, 2024, print edition as 'Will the ICC Self-Destruct to Hurt Israel?'.

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