A Court Without Laws

If the International Criminal Court issues arrest warrants against Israeli leaders, the U.S. should designate it as a terrorist support organization.

The Qatari-financed Middle East Monitor is confident that the International Criminal Court will soon approve Prosecutor Karim A.A. Khan’s application for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Issuance was delayed when the United Kingdom submitted an appeal challenging the court’s jurisdiction. The U.K. was on firm ground: Israel is not a signatory to the Rome Statute, which established the ICC, and the “State of Palestine”, which purports to be a signatory, agreed in the Oslo Accords not to enter into international agreements except for the purpose of obtaining graft for Palestinian tyrants financial assistance for the Palestinian population. On July 26th, the U.K.’s new Labour government withdrew the appeal. No one seriously doubts that the ICC’s sclerotic bureaucracy will grant the warrants in due course.

(In a display of faux-evenhandedness, Prosecutor Khan also asked for warrants against three Hamas officials. Two of those, the commander-in-chief of Hamas’s military wing and the chief of its political bureau, are now permanently outside the ICC’s jurisdiction, unless that extends to Sheol. One may hope that the third, Hamas’s on-the-scene commander in the Gaza Strip, will join them presently in that fitting place of exile.)

Once the warrants are issued and top officials of one of America’s closest allies face the threat of being kidnapped by any of the numerous governments that are parties to the Rome Statute, how should the United States respond? “Should” must be emphasized. We know that the quasi-headless Biden Administration will disclaim any intention of arresting Messrs. Netanyahu and Gallant (which it has no authority to do, since the Rome Statute was never submitted to the Senate for ratification).¹ At the same time, it will insinuate that the ICC’s targets have brought jeopardy upon themselves by refusing to let Hamas survive and resume its campaign to expunge Judaism from the Middle East, if not the Earth.

All thinking about what the U.S. should do, presumably under different Presidential leadership, must start with consideration of what the ICC is. An article by John Bolton in the September National Review succinctly summarizes why the ICC is not a “court” in any real sense:

The ICC’s flaws are too numerous for one brief article. Fundamentally, the very concept of the ICC is illegitimate, an utterly unwarranted derogation of our constitutional, democratic sovereignty by an unaccountable entity operating in an international void. The court is not part of a coherent international-order structure. It is simply “out there” pretending to be a court in a pretend constitutional system that lacks even a pretend legislature to make laws and a pretend executive to enforce them. The ICC combines all three branches of government authority into one body, defying every American concept of separation of powers and the “structural constitutionalism” the Framers believed so critical to protecting our freedoms. Though ICC supporters claim it as vital, it is precisely this consolidating of functions that makes the court most dangerous.

The ICC is not checked anywhere in its jurisdictional reach, its legal conclusions, or its prosecutorial discretion. ICC supporters argue that its member governments ultimately control the judges and the prosecutor, but that is entirely theoretical. So far-reaching is the ICC’s purported jurisdiction that it applies even to nonmembers such as the United States and Israel when alleged crimes are committed on the territory of a state that is party to the Rome Statute. When such nonmembers try to protect themselves against the ICC’s excesses, they are accused of interfering with its independence. While the ICJ [International Court of Justice] decides cases among nations, the ICC purports to exercise jurisdiction directly over individuals, authority no prior international organization ever claimed. Americans fought a revolution against such usurpations. . . .

The ICC’s most dangerous component is its essentially unaccountable prosecutor, whose extraordinary leeway makes U.S. “independent counsels” look tame. As with the Nuremberg and Tokyo tribunals, the Rome Statute’s substantive crimes are vaguely stated, written in broad and sweeping diplomatic prose. They do not pass muster by American standards, which require clarity and precision in criminal statutes in order to give citizens notice of what prohibitions and obligations they face. The Supreme Court has long employed the “void for vagueness” doctrine to declare unconstitutional laws that afford too much discretion to prosecutors, impermissibly putting citizens at risk of prosecution for crimes they never understood existed.

In essence, the “International Criminal Court” is a gang of vigilantes and is entitled to no more respect than the Wagner Group. It fortunately lacks an army, but it does possess the weapons of lawfare, with which it can torment officials of civilized governments whom it labels as “criminals”.

Vigilantes do at times, when law and order has otherwise broken down, take over the duties of police. The ICC has attempted to assume the badge of a “good vigilante” by convicting and jailing participants in various African wars, and it has issued arrest warrants against Vladimir Putin and other Russian officials. The United States, as Mr. Bolton observes, has unwisely treated those cases as exercises of legitimate and beneficent authority:

Sporadic U.S. cooperation with ICC investigations is potentially dangerous. Indeed, the most insidious temptation is for Washington to assist the ICC when the likely accused nation is discernibly evil. In George W. Bush’s second term, for example, the United States cooperated with the ICC in the Darfur conflict and more broadly. Barack Obama found numerous opportunities, including in Kenya, Libya, and the former Zaire. Under Joe Biden, with the support of several congressional Republicans, U.S. cooperation with and rhetorical support for the ICC advanced to its highest levels, especially regarding multiple allegations of Russian war crimes in Ukraine.

The result was to confer undeserved authority on a pseudo-judicial body. When the House of Representatives showed its displeasure with the proposed Netanyahu and Gallant warrants by passing a bill (with about 30 Democrats voting “yea”) that would impose sanctions on ICC personnel, the ranking Democrat on the House Foreign Affairs Committee asserted that sanctions “would have a chilling effect on the ICC as an institution which could hamper the court’s efforts to prosecute the dubious [sic] atrocities that have been perpetrated in many places around the world, from Ukraine to Uganda.” In plain English, he endorsed a lynch mob because it has sometimes hanged² actual miscreants.

That argument might make cynical sense if the ICC in fact made the world more law-abiding. The truth is that the only defendants it has ever taken into custody have been losers in civil wars, for whom a sojourn in The Hague was a more pleasant prospect than the fate that would otherwise have awaited them. As for the idea that the ICC is essential to the bringing Tsar Vladimir to justice, what sane man can entertain that fantasy?

What isn’t fantasy is the role of the ICC in supporting Hamas. Prosecutor Khan’s statement accompanying the application for arrest warrants against Prime Minister Netanyahu and Defense Minister Gallant (here is the link again) is a farrago of baseless accusations: “Starvation of civilians as a method of warfare”, “Wilfully causing great suffering”, “Wilfully killing”, “Murder”, “Intentionally directing attacks against a civilian population”, “Extermination and/or murder”, “Persecution” and “Other inhumane acts”. It is telling that the corresponding list of charges against Hamas leaders omits any allusion to the principal reason for civilian casualties in the Gaza war, namely, Hamas’s practice of using hospitals, schools, hotels, residential apartments, mosques and other civilian structures for military purposes so that the resulting deaths can be exploited as propaganda. Deliberately placing noncombatants in the line of fire is about as basic a war crime as any, but Mr. Khan says nothing about it. Why? Because to do so would undermine his claims of Israeli criminality.

When Israel is fighting a war against an enemy whose declared objective is the killing or expulsion of every Jew “from the River to the Sea” and whose strategy is to attract international sympathy by running up the death toll of women and children, attempts to arrest Israeli leaders constitute prima facie material support for terrorism. An organization that engages in such conduct deserves to be treated as a terrorist auxiliary. Let the ICC join the UNRWA in well-earned infamy.

1. Bill Clinton signed the treaty creating the Rome Statute in the waning days of his Presidency but didn’t send it to the Senate, which he knew would withhold ratification. President Bush fils withdrew the signature and reached agreements with over a hundred countries protecting American citizens from arrest on the ICC’s say-so. The American Service-Members Protection Act authorizes the use of “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. It is colloquially called the “Hague Invasion Act”.

2. Only figuratively. The ICC doesn’t impose the death penalty, and the handful of sentences that it has handed down seem rather paltry in relation to the crimes of the accused.