The ICC Sacrificed Its Credibility to Target Israel

The International Criminal Court (ICC) is imploding. While many factors have contributed to the court’s failure, the final nail in the coffin is a direct result of the court’s decision to cut its nose to spite its face.

The implosion of the ICC is, to a great extent, a direct result of the sanctions imposed on the court by the U.S. administration and its commitment to dismantling it.

The ICC is not a conventional court. It does not have automatic international jurisdiction. Rather, it depends on states joining the court, an act that, in practice, partially delegates a state’s authority to prosecute defined crimes to the court.

The question that then arises is whether the ICC has jurisdiction when soldiers or officials of a non-member country carry out activities and operations in the territory of a member state. For example, does the ICC have jurisdiction over U.S. soldiers and officials – even though the U.S. is not a member of the ICC – for actions they carried out in Afghanistan, which is a member of the ICC?

From the outset, the U.S. understood that the ICC intended to claim jurisdiction based on the territorial/geographical boundaries of member states, and that this could potentially subject U.S. servicemen and officials who operated in those states to the court’s purported jurisdiction.

Responding to the perceived threat, the U.S. passed the American Service Members’ Protection Act in 2002. ¹ Colloquially dubbed the “Hague Invasion Act,” the law empowered the President to “use all means necessary and appropriate to bring about the release of any person… detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” ²

According to the Rome Statute, the ICC’s foundational document, the court is meant to invoke its jurisdiction only when the relevant state is “unwilling or unable genuinely to carry out the investigation or prosecution.” ³

With full knowledge of the U.S. position regarding the court’s general jurisdiction over U.S. personnel, and while it would be almost impossible for the court to determine that the U.S. is unwilling or unable to investigate and prosecute potential offenders, the ICC decided to open an investigation of alleged crimes by U.S. forces in Afghanistan.

So why does the ICC not simply close the investigation against the U.S. servicemen and officials?

The answer, as it is all too often with the ICC, is its obsession with persecuting the Jews.

The ICC – A Court to Persecute the Jews

In its initial stages, Israel was one of the driving forces behind establishing the court. However, it soon became clear that the court had become irrevocably politicized and would be used as nothing more than another weapon and forum of lawfare against the Jewish state. As a result, Israel, similar to the U.S., never joined the ICC.

The non-existent “State of Palestine,” on the other hand, did join the ICC in 2014. From the moment it was admitted, “Palestine” repeatedly and relentlessly urged the court to open investigations against Israeli servicemen and officials for crimes that were alleged to have been committed in “Palestine.”

The problem, however, was that an independent “State of Palestine” never existed in the past, nor does it exist today. Thus, in the absence of any clear geographical area that could be called “Palestine,” the ICC prosecutor asked the court to define the “the territorial scope of this jurisdiction.”⁴

In practice, to persecute the Jews, the ICC prosecutor was asking the court to act ultra vires and make a decision not only to invent the non-existent “State of Palestine,” but also to set its borders, for the first time in history.

The ICC jumped at the opportunity, recognized the fictitious state and decided, in direct contradiction of fact and law, that the “borders” of the new state were the Armistice Lines, drawn between Israel and its hostile neighbors – Egypt, Jordan, Lebanon and Syria – in 1949.

Pursuant to that decision, the now disgraced and fired ICC prosecutor, Karim Khan, opened an additional investigation against Israeli officials, and even requested that the court issue arrest warrants. The court acted as requested.

In reality, everyone knows that the U.S. will do its utmost to prevent the ICC from proceeding against any U.S. serviceman or official, and any such proceeding is, objectively, highly unlikely.

The U.S. has made this position crystal clear, repeatedly, through both the President and former and present Secretaries of State Mike Pompeo and Marco Rubio. In a series of decisions, the U.S. imposed differing sanctions on both the court and its officials.⁵

The ICC and its sanctioned officials also unequivocally know that the court will never prosecute a U.S. serviceman or official. But they have a problem.

If they accept the U.S. position that precludes jurisdiction over officials from non-member states, it would have to accept the same argument concerning Israel, and the claim the Israelis had committed alleged offenses in the “State of Palestine.”

If the court accepts the claim that the U.S., a Western, law-abiding democracy, is both willing and able to investigate and prosecute potential offenders, it would have to accept the same claim with regard to Israel.

Instead of focusing its limited resources to investigate real offenses that were committed in countries that actually exist, the ICC is hell-bent on committing institutional suicide, simply as a means to persecute the Jewish country. Instead of targeting real offenders, the ICC is wasting its time, resources, and finances, pandering to the political whims of those who seek to punish law-abiding countries engaged, within the restrictions and limitations of international humanitarian law, in the war against terror.

The ICC could and should have been a formidable and important international institution. Sadly, it is just another monkey court betraying its potentially lofty goals.

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