My Resignation from the International Criminal Court

The ICC and its Netanyahu arrest warrant

I joined the International Criminal Court in 2012. It was only ten years old and had been tarred by controversy over its credibility and independence. Still, I believed in its stated mission of providing a legal forum for bringing to justice those guilty of genocide, war crimes, crimes against humanity and the crime of aggression.

Being an ICC member did not mean I agreed with everything it did. In 2018, for instance, it undermined its own principles when its appeal chamber unexpectedly overturned the conviction of Jean-Pierre Bemba, a Central African Republic politician found guilty of allowing war crimes under his command. And there were many instances in which I was concerned about apparent bias, had questions about fairness over the cases it pursued, and was frustrated by its glacial pace. Still, I stuck with the ICC.

Today, I submit my resignation and cancel my membership.

The May 21 decision to pursue arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant on war crimes charges, was a bridge too far. Those warrants, the first ever against any Western leaders, were an assault on the state of Israel and its right to defend itself against a terrorist enemy who violates the Geneva Convention by using its civilian population as human shields. The very suggestion of a moral or legal equivalence between a democratic country fighting an enemy that threatens its elimination and Hamas’s mass murderers is itself preposterous.

The ICC prosecutor, British lawyer Karim Kahn, relied on experts versed in human rights law, not the laws of conflict. This was all about feeding a feverish anti-Israel sentiment, particularly an anti-Netanyahu virus. There is no other way to explain why the ICC so blatantly violated its key rule about its own jurisdiction.  The ICC only has jurisdiction when local courts are unwilling or unable to act. When the ICC issued arrest warrants last year for Vladimir Putin, and Maria Lvova-Belova, the Russian Commissioner for Children's Rights, it was confident that if it did not act, there was no independent Russian legal tribunal that would pursue those charges. The same is true with the arrest warrant request this week for three Hamas officials -- Yahya Sinwar, Ismail Haniyeh and Mohammed Deif — for war crimes including extermination and murder, the taking of civilian hostages, torture, rape and sanctioned acts of sexual violence. Even the ICC understands that Hamas has no intention of investigating its own atrocities.

“Israel, on the other hand,” noted the Israeli ambassador to the EU, Haim Regev, “has a rigorous legal system that has proven itself willing and able to investigate and prosecute violations of international law.”

President Biden, who has tried straddling an impossible middle in the conflict by arming Israel while criticizing the humanitarian response in Gaza, had no doubt the ICC move was beyond the pale. “Let me be clear,” he said, “we reject the ICC’s application for arrest warrants against Israeli leaders. Whatever these warrants may imply, there’s no equivalence between Israel and Hamas.”

Not all U.S. allies agree. France and Germany, most notably, have said they would arrest Netanyahu and extradite him to The Hague for trial. Germany, of course, has had some practice in arresting Jews, although I personally was surprised by their quick embrace of such an outlier warrant.

I understand that the cancellation of my ICC membership is symbolic only. I hope, however, that I am not the only one to throw in the towel on a troubled tribunal whose ingrained biases have destroyed any last vestiges of authority and impartiality.

This ICC — the one that wants to draw parallels between the IDF and Hamas terrorists — is destroying itself in real time.

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By the way, for any subscriber who also does Wiki editing, I would appreciate if someone could remove the ICC reference in my Wikipedia page, or at least update it with this Substack. I will correct my own Linkedin profile.