ICC’s Israel Warrants Damage its Legitimacy, Military Experts Say

The only legal recourse that Israeli Prime Minister Benjamin Netanyahu and Yoav Gallant, the former defense minister, have to fight the arrest warrants issued by the International Criminal Court is to surrender and go to trial, an expert on the laws of war said during a Friday webinar.

Geoffrey Corn, a retired lieutenant colonel in the U.S. Army and chair of criminal law and director of the Texas Tech University School of Law’s military law and policy center, and Gabriel Noronha, a fellow at the Jewish Institute for National Security of America and former special adviser on Iran at the U.S. State Department, discussed the implications of the warrants on the JINSA webinar.

“This is one of the ironies here—the validity of these charges as legitimate claims of violations of international criminal law can only truly be tested by trial, but to test by trial, you have to submit to a jurisdiction you think is inherently invalid,” said Corn, who is also a distinguished fellow at JINSA and a member of its Gaza assessment and hybrid warfare task forces.

While the chances of Netanyahu or Gallant turning himself into the ICC willingly are slim, Corn said that the ramifications of the warrants, sought by Karim Khan, the ICC prosecutor, and granted by the court, are more profound politically and diplomatically than legally.

“This reinforces every critic of Israel,” Corn said. “It can and it will be used as confirmation of the worst narratives of what Israel has done in this conflict, with no real opportunity for rebuttal or to demonstrate the overreach that people like me perceive to be at the heart of this accusation.”

Corn added that the charges will “mean what people want it to mean, without ever being fully litigated.”

He added that the evidence that Khan presented, that Netanyahu and Gallant carried out a policy of starvation in Gaza and orchestrated crimes against humanity, posed “a very low bar.”

The ICC is based in The Hague and is a stand-alone court, which isn’t part of the United Nations. The court’s pre-trial chamber “plays an important role in the first phase of judicial proceedings and makes the decision whether to confirm the charges against the potential accused,” per the court.

“Ultimately, all the Pre-Trial Chamber is doing is looking at what the prosecutor mustered in terms of evidence and asking a simple question: Would it be unreasonable to believe that these crimes were committed—not were they committed, not have they been proven beyond a reasonable doubt—but would it be unreasonable to let this case go forward?” Corn said.

He added that Khan elected not to have any military law experts on an advisory panel that he created to look at the case.

Corn said that his criticism lies not with the judges, who issued the warrants, but with Khan, who, he said, jumped the gun, possibly in an effort to display a misguided sense of balance by prosecuting both Israeli and Hamas leaders.

“I think this is all premature,” he said.

Had Khan “come out when he announced the effort to charge Hamas leadership and said, ‘I’m also concerned about what Israel is doing. I’m going to stay focused on that and continue to interact with them and decide later whether I think they’re credibly investigating what may have been violations of the law,’ I think that would have been a very credible statement,” Corn said. “But that’s not what he did.”

The ICC is only meant to step in, Corn said, when states are incapable or unwilling to investigate themselves. But Israel has a history of investigating its own officials and practices, including prosecuting one of its own prime ministers and a president, he said.

Criminal law is a weapons system that can be used to positive effect when battling impunity at the international crimes level, according to Corn.

“But like any weapons system, it’s subject to abuse or misuse,” he said. “The real issue is, when you vest institutions and individuals with discretion to leverage the weapon system, the bar should be extremely high on them following the principles of law and the institution that they serve.”

Corn said that Khan’s rush to seek warrants, on the same day that he was scheduled to fly to Israel to meet with officials there, “is an abuse of the institutional ethos that the court was actually founded on.”

‘Completely derail’ ICC efforts

Noronha said during the webinar that he anticipates that the United States will impose immediate and heavy sanctions on the ICC, Khan and others affiliated with the court once a new Congress takes over and President-elect Donald Trump enters the White House on Jan. 20.

U.S. officials warned Khan and the court that pursuing Israeli officials was to be done at their own peril, he said.

“There have been a number of senior conversations between Senate leadership” and Khan, where “they warned very specifically that this would be the outcome, that it would be basically full political warfare from the United States against the ICC if they went down this path,” Noronha said.

The “tragedy” of Washington’s pending, aggressive pursuit of the ICC is that “it’s going to change the nature of the court,” he said. It will also “completely derail the ICC efforts against” Russian President Vladimir Putin and “against warlords in Africa,” he added.

The ICC was built not for “difficult political questions, on which there are split opinions and on which the international community is divided,” Noronha said.

By extending the court beyond its legal mandate into the political realm, the ICC “no longer will have a broad perception of legitimacy among the actors who are supposed to be enforcing it,” according to Noronha.

The U.S. Departments of State and Justice can “engage in outreach to all of our partners and ask them to basically have statements indicating that Prime Minister Netanyahu and Gallant are free to visit countries and that they will not abide by this particular ruling,” he said.

That particular avenue is time-consuming and “requires a lot of diplomatic bandwidth, and it does not often bear a lot of fruit in foreign legal jurisdictions,” he said.

Noronha added that “more coercive methods” are likely more effective, including mandatory diplomatic and economic penalties for any state that attempts to enforce the warrants.

Originally published in Jewish News Syndicate.