International Criminal Court Prosecutor Karim Khan enraged millions in Israel and abroad when he announced that he would seek arrest warrants for three Hamas leaders as well as for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.
The two main issues were that in doing so he equated Hamas terrorists with Israel’s democratically elected leader and ignored the legal principle of complementarity. Under this principle, a case is inadmissible before the ICC if it is currently under investigation by a state with jurisdiction over it. This means that states have priority over the ICC regarding cases within their jurisdiction.
Following the ICC’s move, the International Court of Justice seemingly ruled that Israel must halt any military offensive in Rafah that could harm civilians.
But the ruling was widely misunderstood. The wording actually focused on how the war should be conducted and was not a judgment on its legality, nor did it require Israel to stop fighting in Rafah as many believe.
According to Lt. Col. Geoffrey Corn (ret.), a U.S. Army special assistant for military law and a JINSA distinguished fellow, it is clear Israel should not stop its operation in the southern Gaza city.
The ICJ’s ruling didn’t order Israel to terminate its war in Rafah but rather “to make sure that whatever they were doing, they were not creating a risk the civilians in Gaza would be subjected to genocide,” Corn told JNS.
This means, according to Corn, that the IDF would just be “doubling down” on the precautions it was already implementing to prevent unnecessary risk to civilians.
ICJ Vice President Julia Sebutinde of Uganda specifically recognized this when she wrote, “This measure does not entirely prohibit the Israeli military from operating in Rafah. Instead, it only operates to partially restrict Israel’s offensive in Rafah to the extent it implicates rights under the genocide convention.”
Likewise, former Israeli Supreme Court Justice Aharon Barak, who represented Israel at the ICJ, similarly wrote, “This measure requires Israel to halt its military offensive in the Rafah Governate only insofar as is necessary to comply with Israel’s obligations under the genocide convention.”
According to Barak, the ICC did not prevent Israel from carrying out its military operation in Rafah “as long as it fulfills its obligations under the genocide convention,” which means that Israel has the right “to prevent and repel threats and attacks by Hamas, defend itself and its citizens, and free the hostages.”
Corn said the objective of a self-defense campaign “is to eliminate the enemy forever,” which means that “leaving fully-capable Hamas units in Rafah for them to reconstitute once you withdraw doesn’t make a lot of sense.”
Corn noted that one of the unfortunate aspects of the ICJ rulings is that “they’re not premising all of their views on the basic principle of the inherent right to self-defense, and analyzing and articulating what Israel has the right to do pursuant to that accord.”
“Of course the ICJ has no jurisdiction over Hamas,” he added, pointing to the “absurd situation” in which the court makes demands of Israel yet “implicitly tolerates the continuing Hamas illegalities.”
“There’s a bigotry of different expectations,” he said.
With regard to the ICC the equation is different, he told JNS.
“It’s in the interest of the people in the crosshairs of the ICC prosecutor to demonstrate a rejection of that type of rhetoric,” he said.
“The main basis for the ICC prosecutor’s assertion of jurisdiction in spite of the concept of complementarity is that the people he’s put in his crosshairs, the prime minister and defense minister, in his view, are functionally immune from any type of consequence for conventional misconduct.”
Corn said he doubted this, especially since a former Israeli prime minister has been convicted of criminal activity and in Israel the attorney general technically does not work for the prime minister, as opposed to in the United States where the attorney general is an agent of the executive branch.
He called Khan’s decision “unfortunate,” “legally erroneous” and “an abuse of prosecutorial discretion.”
“At best,” he said, Khan’s action was “premature” as “there was no compelling reason to do this now.”
In Corn’s view, Khan “should have waited, targeted Hamas’s leadership first and then, as the dust settled, if he really thought there was credible evidence that Gallant and Netanyahu were culpable for war crimes and crimes against humanity, he could have pursued that later. He could have let Israel’s political and legal system run its course.”
Israel has “institutional manifestations of independence of the investigative and criminal process,” Corn noted, and therefore does not fall under ICC jurisdiction.
However, he added that the argument for an abuse of prosecutorial discretion by the ICC would be substantially enhanced by some evidence that the Israeli system is taking the assertions seriously and is looking into them.
“If the government were to announce some commission of inquiry to critique the allegations leveled in the request for the arrest warrant, I don’t know if it would stop anything, but it would certainly make the argument of complementarity much stronger on behalf of Israel,” he said.
Khan “will never admit he’s abused his discretion. He believes what he’s doing is credible. He’s got complete impunity for his decisions,” he added.
What really bothers him, he said, is that Khan has the “audacity” to allege that Israeli leaders intentionally ordered attacks on civilians, while failing to level that same charge against Hamas leaders.
“What about the 10,000 rockets? Those are war crimes,” he said.
“That was a real mistake on his part,” Corn said of Khan.
Avi Bell, a professor of law at Bar-Ilan University in Ramat Gan and the University of San Diego, also questioned the ICC’s decision. Israel’s combat operations “have always been subject to internal legal review that ensures that the operations are not only compliant with international law, but with the overly strict interpretation of international law favored by Israel’s legal authorities,” he told JNS.
“Nothing in the current proceedings at the ICC or ICJ will change that,” he added.
Most people understand that the ICC and ICJ proceedings “are political and ideological rather than legal, and [that these institutions] are primarily interested in enhancing the courts’ powers while victimizing the favorite punching bag of the United Nations.”
Bell said it is clear to him that “most of Israel’s elected leadership (including opposition figures) understand that the ICC-ICJ game is rigged and that neither the legality of Israel’s conduct nor the illegality of the courts’ will play a role in the proceedings, and that it is pointless to try to convince the courts on the merits.”
Bell said he expects that the ICC and ICJ “will continue on their anti-Israel courses until the institutions or their personnel are forced to pay a price they consider unacceptable, such as criminal or administrative sanctions on their personnel or a cutoff of funds.”
Absent that, in the future “there will be more ICJ anti-Israel orders, and more Israelis falsely accused of crimes in the ICC, unless Israel is able to bring more pressure on the courts,” he said.
“Given the Biden administration’s refusal to impose pressure on the courts, and the courts’ tailoring their orders to suit the prejudices of the Biden administration, it seems likely the ICC and ICJ will continue acting against Israel until there is a change of policy or a change of personnel in the White House,” he added.
He noted that both the ICC and ICJ lack any substantial enforcement powers.
“Most orders of the ICJ are disobeyed, and the ICC has never successfully prosecuted and convicted a defendant without some measure of assistance from the relevant state,” he said. “If the ICC or ICJ have an effect on Israel’s policies, it will be a colossal Israeli policy mistake.”
But then, he said, the rulings “are not intended to affect Israeli behavior” but rather “are part of an international propaganda campaign to weaken Israel and its image, to provide legitimacy for antisemitism and to provide tools for Israel’s enemies in the West to impose sanctions, boycotts and the like.”