In 1998, during the adoption of the Statute of the International Criminal Court (ICC), Judge Eli Nathan, head of the Israeli delegation, expressed both hope and fear for the future of the Court. As a Holocaust survivor, Nathan hoped that the ICC would truly fulfill its role in ending impunity for the most serious crimes. However, he also feared that the politicization of the statute, especially with crimes aimed at attacking Israel, would derail the Court’s goals. Despite this, he expressed the hope that common sense would prevail and that the Court would “serve the noble objectives for the pursuit of which it has been established.”
A quarter of a century later, Nathan’s fears appear to have materialized. Far from ending impunity for serious crimes, the ICC prosecutor has announced arrest warrants for Israel’s prime minister and defense minister, along with Hamas leaders, creating a morally offensive equivalence between the murderers and rapists of 7 October; and the victims who defend themselves from Hamas, which has sworn to commit said massacre “again and again.” In fact, the prosecutor has gone beyond equivalence by accusing Israel of intentionally directing attacks against a civilian population, but not Hamas, which beyond the October 7 massacre continues to fire thousands of missiles at Israel since then.
The prosecutor has also ignored the principle of complementarity of the ICC Statute, which states that the Court only has jurisdiction when national courts are unable or unwilling to act.
The prosecutor has also overlooked the ICC Statute’s complementarity principle, which states that the Court only has jurisdiction when national courts are unable or unwilling to act. Hamas obviously has no intention of investigating its own atrocities, while Israel has a rigorous legal system and has demonstrated its ability to investigate and prosecute violations of international law. This commitment to the rule of law was recognized by the prosecutor himself after his visit to Israel, after the October massacre. He noted that “Israel has trained lawyers who advise commanders and a robust system aimed at ensuring compliance with international humanitarian law.”
The prosecutor’s accusations reflect a disconnection from reality. Accusing Israel of deliberately starving Gazans makes no reference to the half a million tons of food and aid delivered in nearly 20,000 trucks, even as Hamas continues to fire missiles and steal supplies intended for the Palestinians. The prosecutor attempted to bolster his decision by referring evidence to a group of “impartial experts,” although many of them have already made public accusations critical of Israel. Many present themselves as human rights lawyers, but are barely familiar with the laws of armed conflict.
The prosecutor’s request must still be approved by a three-judge Pre-Trial Chamber. Although this Court has approved requests from the prosecutor in the past, in this case he is expected to save the court from itself.
If experts such as John Spencer, director of the Center for Urban Warfare Studies at the Institute of Modern Warfare at West Point, were included, a different perspective would be presented: “I have never known an army to adopt such measures to care for the enemy’s civilian population.” , especially while simultaneously fighting the enemy in the same buildings. In fact, according to my analysis, Israel has implemented more precautions to prevent civilian harm than any other military in history.”
At the 1998 ICC Conference, Judge Nathan expressed his worst fear of the Court, that it would become “just another political forum to be abused for political purposes by an irresponsible group of States, at their political whim.”
Tragically, the prosecutor has just come one step closer to that sad prediction.
DANIEL TAUB
*Former ambassador of the State of Israel to the United Kingdom and international jurist
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