Israel is facing unprecedented and bizarre proceedings at the International Criminal Court (ICC), crescendoing with a request by Prosecutor Karim Khan for arrest warrants against its sitting Prime Minister, Benjamin Netanyahu, and Defense Minister, Yoav Gallant.

These events are the result of a multi-faceted and long-developing campaign by anti-Israel activists that has largely advanced under the radar.

Firstly, Israel is not a member of the Court and does not recognize ICC jurisdiction over its actions. In the late 1990s, Israel was initially a strong backer of the ICC, but during the drafting of the Court’s governing Rome Statute, the Arab League blocked efforts to include terrorism as an international crime and helped invent a new crime that would specifically target Israeli activity across the 1949 armistice lines. For these reasons, Israel refused to ratify the Rome Statute and join the Court.

In any other situation, this would be the end of the matter. However, beginning in 2009, the Palestinian Authority (PA), acting in collaboration with UN Rapporteurs and European-funded NGOs linked to the Popular Front for the Liberation of Palestine terror group, attempted to join the Court.

Rather than dismiss the PA’s effort immediately because the PA is not a state — and ICC membership is only available to states — the ICC Prosecutor at the time, Luis Moreno-Ocampo, launched a PR campaign to ostensibly “debate” the issue. Three years later, he rejected the PA’s application, but instead provided a blueprint facilitating the Palestinians’ ability to circumvent the clear standards of the Rome Statute.

In November 2012, the Palestinians succeeded in upgrading their status at the UN to “non-member observer state.” Merely on the basis of this semantic, rather than substantive change, ICC officials allowed the Palestinians to game the system and join the Court.

Despite these machinations and exploitation of the Court, the next Prosecutor, Fatou Bensouda, filed a request with the Court’s Pre-Trial chamber (PTC) in December 2019 seeking authorization to open an investigation into crimes allegedly committed on the territory of the “State of Palestine,” despite the fact that this state does not exist and has no defined territory. Moreover, she argued that the Court could proceed against Israelis, regardless of whether it was a member of the Court.

This action, endorsed by the PTC in February 2021 in a controversial 2-1 opinion, essentially eviscerated the Oslo Accords, the agreement mutually agreed to between Israel and the PLO in the mid-1990s, which lays out governance of the West Bank and Gaza.

A key provision of the Accords is that the PA would not have any authority to exercise or delegate any criminal jurisdiction over Israelis to the Court. The Prosecutor and the Court completely ignored this issue.

In yet another unbelievable move, the Court next also allowed the Palestinians to retroactively assign temporal jurisdiction going back to June 13, 2014, precisely the day after the kidnapping and subsequent murder of three Israeli teenagers, which triggered the war that summer. This meant that Hamas’ brutal murder and kidnapping of Jews, a preview of what Israel would experience on a larger scale on October 7, would get a free pass from the Court.

Fast-forward to Khan’s move to file for arrest warrants against Netanyahu and Gallant. Here, too, the Prosecutor’s office engaged in highly questionable conduct. Khan could have already issued indictments against Hamas leaders on October 7 itself, when their flagrant crimes were broadcast around the world. Instead, he chose to wait until after manufactured allegations of “starvation” could be crafted against Israeli officials. He also inexplicably ignored thousands of other war crimes, including each rocket attack on Israel, committed by Palestinians since 2014.

In yet another outrageous move, at the time of the announcement, Khan’s team had been scheduled to attend meetings in Israel. However, the planned trip appears to have been a bad faith ruse. Instead of the team boarding the plane, Khan went on CNN to tell Christiane Amanpour in an exclusive interview about the arrest warrant requests. It doesn’t take an expert in communications to know that such a step would generate a storm of PR almost solely focused on Israel, meaning attention on the Hamas atrocities and real crimes committed on October 7 would be virtually ignored.

One also wonders if any mind was paid to what this action might mean for any hope of a ceasefire to secure the release of the hostages.

Egregiously, Khan’s actions offended another cornerstone of the Rome Statute, that of complementarity. The ICC is only supposed to act as a court of last resort in situations where a judicial system is unable or unwilling to investigate international crimes. As he himself acknowledged on a visit to Israel in early December, Israel has robust investigatory mechanisms and judiciary — one that has never shied away from intervening in military matters, nor in going after the most senior officials, including prime ministers.

Instead of giving the Israeli system a reasonable time to proceed, however, the Prosecutor disregarded the complementarity requirement and decided to bulldoze forward. In contrast, although Khan has had for years the jurisdiction to act against President Maduro in Venezuela, the Taliban in Afghanistan, and military junta in Myanmar — authoritarian governments responsible for horrific atrocities — no cases have been filed.

Multiple procedural irregularities and political maneuverings of the Office of Prosecutor have been well-documented, and there are several other disturbing aspects to the “Situation in Palestine” not mentioned here. For years, the ICC has been under intense criticism for its lack of accomplishments in its more than 20 years of operation. Khan was brought in to serve as a sober and responsible actor to right the ship. The actions of his office the past few months now call this assessment into question.

In an interview published with the Times of London a few days after his inexplicable actions, Khan stated, “if we don’t hold on to the law, we have nothing to cling onto.” The Prosecutor would be wise to reflect on his Office’s history and follow his own advice.

Anne Herzberg is the Legal Advisor of NGO Monitor, a Jerusalem-based research organization.

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