Sham court issues outrageous arrest warrants for Netanyahu and Gallant

The International Criminal Court (ICC) has issued arrest warrants for Benjamin Netanyahu, Israel’s prime minister, and Yoav Gallant, until recently its minister of defense. The warrants are based on a finding that there are “reasonable grounds” to conclude that the two officials bear "criminal responsibility" for alleged war crimes and crimes against humanity during Israel’s war against Hamas.

The warrants mean that if either man sets foot in any ICC member state he can (and in the ICC’s view, must) be arrested and handed over to the court. If handed to the court, he will be held at its Detention Centre in The Hague until they are tried — months, if not years, later.

This post consists of two parts. The first discusses the sham that is the ICC. The second discusses the outrageousness of its warrant for the arrest of Netanyahu and Gallant.

I have experience with the ICC, stemming from work on a war crimes case it tried in the late 1990s. From that experience and from subsequent research, I learned the following:

The court is composed of judges, many of whom are either left-wing ideologues, jurists from states with little or no regard for human rights, or both. For example, current judge Solomy Balungi Bossa hails from Uganda, a serial abuser of human rights. Current judge Erdenebalsuren Damdin is from Mongolia, whose human rights record is also dismal.

Judge Reine Alapini-Gansou comes from Benin, another nation that fails to respect basic human rights. She is one of the three judges who signed off on the arrest warrants for Netanyahu and Gallant.

Lefty judges from the West can be as bad, or worse, than ones from third-world countries where human rights abuses are rampant. The presiding judge in the case I worked on, Richard May, was from Great Britain. So far, so good.

But he was a Labour Party activist. Whatever might be said about his handling of a case arising from the Balkans, no fair-minded person would want a British Labour Party activist judging Israel’s actions, especially as that party was constituted in the 1970s when May was its candidate for various offices.

A great many ICC judges, past and present, worked on “human rights” for the United Nations in various capacities. The U.N. is a virulently anti-Israel outfit.

I also found it notable that appeals from ICC decisions were handled by colleagues of the judges who decided the case. In other words, the trial judges reviewed the work of each other. This closed loop seemed like a recipe for back scratching at the expense of fully fair appeals.

The rules of evidence applied by the ICC differed significantly from those we’re accustomed to in the U.S. Hearsay testimony was admitted regardless of whether one of the exceptions to the rule in our jurisprudence applied. Defendants could be sentenced to decades in prison based on hearsay that wouldn’t be admissible in U.S. courts.

Consider, too, the standard for arresting individuals, including elected leaders like Netanyahu. As noted, the arrest warrants were based on a finding of “reasonable grounds” to believe that he and Gallant bear criminal responsibility.

In the U.S., thanks to the Fourth Amendment, the standard for arrest is “probable cause.” I’m not sure how the ICC applies the “reasonable grounds” standard, but it seems less stringent than probable cause because a belief can be reasonable to hold even if it isn’t probably true.

And consider the consequences of arrest. In the U.S., it typically means a trip to a nearby jail followed, ordinarily, by release on bail — perhaps even cashless bail.

Under the ICC, it can mean a trip to The Hague and months or years in prison with no hope of pre-trial release. Our client spent more than three years in prison before the ICC rendered judgment.

Now let’s turn to the specifics of the case for arresting Netanyahu and Gallant. Here, I rely on a recent article by Peter Berkowitz.

He writes:

[T]he court’s beliefs about Netanyahu and Gallant lack evidence and defy reason. Hamas casualty figures stemming from the complex and tragic urban warfare that its Oct. 7 attack forced upon Israel include – but do not distinguish – noncombatant and combatant deaths. Even accepting Hamas’ numbers, the ratio of noncombatant-to-combatant deaths in Gaza stemming from Israel Defense Forces actions compares favorably to the ratio of noncombatant-to-combatant deaths for all modern militaries compelled to fight in densely populated areas.

Moreover, since the ICC has not had access to IDF rules of engagement, the prosecutor and the judges could not have reasonably determined whether specific IDF actions, let alone overall Israeli military tactics and strategy, violate the international laws of war. And the ICC gives no appearance of having considered Hamas’ theft of huge amounts of the humanitarian relief that Israel, at considerable risk to its soldiers, has shepherded into Gaza since the Oct. 7 massacre.

Peter continues:

By deliberately enmeshing Israel in complex and tragic urban warfare, Hamas has made itself presumptively responsible, morally and legally, for the terrible physical destruction and loss of life in Gaza. In defiance of the international laws of war, the jihadists conduct operations and maintain military infrastructure – headquarters, bases, hideouts, munitions workshops, arsenals, and rocket launchers – amid and under Gaza’s civilian populations.

The jihadists know that by using Gaza’s noncombatant population as human shields they can inhibit Israel, which respects the international laws of war. When large numbers of Palestinian noncombatants die, as inevitably they will even when the IDF, consistent with the laws of war, uses no more force than is necessary to accomplish its legitimate military objectives in Gaza’s cities, Hamas counts on the so-called international community and international organizations to blame Israel and charge the Jewish state with criminal conduct.

The so-called international community and international organizations have shown themselves only too ready to oblige.

Prosecutor Kahn and the ICC judges, for example, have embraced Hamas’ loathsome propaganda. The ICC’s press release explaining the issuance of arrest warrants for Netanyahu and Gallant does not mention Hamas’ monstrous transformation of Gaza’s civilian areas and infrastructure into battle zones.

Peter also points out, as Netanyahu has, that the ICC prosecutor who procured the arrest warrants lied to the U.S. Senate;

“The ICC prosecutor lied when he told American senators that he would take no action until he had visited Israel and heard its side,” said a statement issued by the prime minister’s office. “Instead, he canceled his arrival in Israel in May, several days after suspicions of sexual harassment were made against him, and announced his intention to issue arrest warrants against the prime minister and former defense minister.”

The ICC’s arrest warrants aren’t only unjust. As Gallant has observed, they “set a dangerous precedent against the right to self-defense and moral warfare, and encourage murderous terrorism.”

In addition, Sens. Marco Rubio and Tom Cotton reminded the ICC’s prosecutor that the ICC charter bars it from exercising jurisdiction over nation-states with judiciaries that are willing and able to prosecute credible allegations of war crimes against their own government officials and soldiers. They stated, “You [the prosecutor] yourself have said that Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.”

Rubio and Cotton also objected to the ICC’s selective prosecution:

Your office has not issued arrest warrants for Iran’s Supreme Leader Ayatollah Ali Khamenei or any other Iranian official, Syrian President Bashar al Assad or any other Syrian official. Nor have you issued an arrest warrant for the genocidal General Secretary of the People’s Republic of China, Xi Jinping, or any other Chinese official.

Of course it hasn’t. I’m surprised that Iran doesn’t have a judge on the ICC.

The Biden administration declared that it “fundamentally objects” to the issuance of warrants for the arrest of Netanyahu and Gallant. Unfortunately, but not surprisingly, the EU took a very different stance. Its foreign policy chief reminded the bloc’s member states that they are obligated to enforce the warrants,” and some U.S. allies expressed their willingness to comply.

Rubio and Cotton warned of “severe sanctions” against the prosecutor and the ICC in the event of arrest warrants against the Israeli officials. With Donald Trump soon to be in the White House, Rubio soon to become Secretary of State, and Cotton soon to be in a leadership position in a Republican-controlled Senate, such sanctions are likely to be imposed.

Let’s hope so. As Peter Berkowitz concludes:

[Sanctions] will advance U.S. interests not only by aiding Israel, a friend enmeshed in a seven-front war waged against it by the Islamic Republic of Iran, but also by upholding nation-state sovereignty and countering the abuse of international law.