On November 24, the Washington Post editorial board published an article outlining its views on the arrest warrants for Israeli officials recently issued by the Pre-Trial Chamber of the International Criminal Court (ICC).
Reading it as a lawyer, I found it full of misinformation and misrepresentations of fact. It is unclear whether the editorial was an attempt to mislead readers or reflected the board’s significant lack of knowledge and research capabilities on ICC-related issues – or both.
Either way, the article deserves a response that lays out the facts and points out the misrepresentation.
Has the ICC ignored other serious situations?
At the outset, the article suggests that the ICC has failed to tackle international crimes in Syria, Myanmar and Sudan. This is clearly non-factual.
The default ground for the ICC to exercise jurisdiction is the commission of international crimes in the territory or by nationals of a State party to the ICC or a non-State party that has accepted the jurisdiction of the Court. The three states mentioned have neither joined the ICC nor accepted its jurisdiction.
The Court exercises its jurisdiction in Sudan on the basis of a United Nations Security Council resolution which referred the case to the Court in 2005 – as is its right under the Rome Statute, the treaty which created the ICC. Since then, the ICC has actively engaged in the situation in Sudan, issuing seven arrest warrants and prosecuting six cases.
The Post is concerned about the behavior of the rapid support paramilitary forces, but nowhere in its editorial mentions that Ali Muhammed Ali Abd-Al-Rahman, one of the leaders of its constituent militia, the Janjaweed, is already detained by the ICC and currently on trial. It also omits ICC prosecutor Karim Khan’s assertion that his office is still investigating ongoing crimes.
In Myanmar, the Prosecutor’s Office opened preliminary examinations in 2018. After just one year, the Pre-Trial Chamber authorized it to open an investigation. On November 27, the prosecutor’s office requested an arrest warrant for the head of Myanmar’s military government, Min Aung Hlaing.
To do so, Khan’s office and the Pre-Trial Chamber pushed the boundaries of the legal text to adopt unorthodox and precedent-setting interpretations of the law, with a view to overcoming the jurisdictional challenge in the absence of a referral to the Council. UN Security Council.
Both organs of the ICC agreed that, although the crimes of “deportation” and “persecution” were committed by nationals of a non-state party and on the territory of a non-state party (Myanmar), the “conduct” constituting the crimes forced the victims into the territory of a State Party (Bangladesh); therefore, the ICC should have jurisdiction because the crimes were committed “in part” within the territory of a state party.
Despite the lack of grounds to exercise jurisdiction in Syria, former prosecutor Fatou Bensouda effectively attempted to respond to these crimes. His office proposed a creative approach to examining acts committed by nationals of state parties, but ended up with a very narrow scope of perpetrators and crimes.
There is no “failure” of the ICC to respond to crimes committed in Syria; rather, it is a failure of the Security Council to refer the Syrian case to the ICC, as it did for Libya and Sudan. It is therefore appropriate to criticize the Security Council system, including the United States’ decades-long abuse of its veto power, for example to protect Israel.
Should prosecutions be entrusted to the Israeli system?
The Post uncritically reproduces a standard talking point between Israel and the United States: Israel, as a “democratic country committed to human rights,” is capable of investigating its own security forces. The ICC should not put “elected leaders of a democratic country with its own independent judiciary in the same category as dictators and authoritarians who kill with impunity,” she says.
This argument distorts ICC law and hides substantial facts.
Even if Israel and its institutions could be considered “democratic” and “independent,” international law requires much more than that. The principle of complementarity means that the ICC complements, rather than replaces, national courts. Thus, the ICC prosecutor can only intervene when the competent state is “inactive” in investigating crimes.
Complementarity in no way means that elected officials and the independent judiciary of a democratic state benefit from immunity from ICC prosecution. Rather, it means that Israel must show that it is conducting active investigations. The fact of Israel’s inactivity regarding the war crimes and crimes against humanity committed by Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant already means in itself that the assessment of the complementarity has been exhausted and the court can continue its work.
And even if active, Israel would have to demonstrate its willingness and ability to truly pursue the perpetrators and their behavior. ICC law allows it to intervene if “the investigative activities undertaken by national authorities are not tangible, concrete and progressive”, as provided for in a decision in the case of the First Lady of Côte d’Ivoire , Simone Gbagbo, accused of crimes against humanity. .
Procedures intended to protect the perpetrators or crimes in question warrant intervention by the ICC. This forces Israel, for example, to investigate the same person for substantially identical behavior.
The Post hides that for decades, Israel has failed to hold its officials and members of its armed forces accountable for their crimes. These failures have been documented repeatedly by the UN and human rights organizations.
The 2014 UN Commission of Inquiry, for example, addressed “procedural, structural and substantive deficiencies that continue to undermine Israel’s ability to adequately fulfill its investigative duty.” Palestinian and Israeli NGOs have repeatedly examined Israel’s tendency to whitewash its own crimes, and Amnesty International has considered that “an ICC investigation (is) the only way” to enforce international law.
These reports are by no means unknown or recent. Human Rights Watch, for example, has documented Israel’s failure to prosecute war crimes as far back as the 2014 war on Gaza, the Second Intifada, the First Intifada, and even the 1982 Israeli invasion of Lebanon, after which the Israeli government created the Kahan. Commission responsible for concealing the responsibility of the Minister of Defense at the time, Ariel Sharon, in the massacre of Sabra and Shatila.
The Post’s omission of these facts does not appear to be mere negligence.
Do the arrest warrants give credence to the accusations against the ICC?
The editorial also claims that the arrest warrants “damage the credibility of the ICC and lend credence to accusations of hypocrisy and selective prosecution.” This maliciously misrepresents the facts to intentionally mislead readers.
There are indeed long-standing, well-founded and almost uncontested accusations, but they do not amount to bias against countries like Israel. During the first 20 years of its operation, the court sought to prosecute only people from the African continent. As a result, it was criticized for having an “African problem” and channeling “the assertion of neocolonial domination”.
The ICC’s neglect of atrocities committed by Western armies has been constantly cited, particularly in relation to Palestine, Iraq and Afghanistan. As Valentina Azarova, Triestino Mariniello and I have already argued in two articles, the Court’s action on crimes against Palestinians could help it resolve its problems effectively and legitimately.
As a jurist, I have encountered no rigorously substantiated accusation against the Court that it is biased against “elected leaders” of “democratic states,” as the Post suggests. US attacks on the ICC – beginning with the Hague Invasion Act of 2002, which threatens a US invasion of any state that complies with an ICC arrest warrant against US citizens – have been crude expressions of American hegemony and brutal brutality.
Israel itself has engaged in similar activities, as an investigation by +972 magazine, Local Call and the Guardian revealed in May. According to these publications, Israel conducted a nine-year state-orchestrated campaign of espionage and intimidation against the ICC in order to protect its nationals from prosecution.
Ultimately, even in its decision to prosecute the Palestinian case, the ICC is doing the bare minimum of what it should be doing. And it is not his “bias” – as the Washington Post maintains – that prompts him to act, but rather Israeli behavior – its scale, its degree of cruelty and the unprecedented availability of conclusive evidence.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Tel Aviv Tribune.
