Introducing Ourselves to the New Prosecutor of the International Criminal Court (ICC) in Defense of Israel's Interests

Earlier this summer, the International Criminal Court (ICC) changed Prosecutors. The nine-year term of the second ICC Prosecutor, Mrs. Fatou Bensouda, ended, and she was succeeded by Mr. Karim Asad Ahmad Khan, who had been selected earlier in the year to become the third ICC Prosecutor.

Upon her departure, Mrs. Bensouda left Mr. Khan an intractable political situation to deal with. As we have discussed before, Mrs. Bensouda had long had her sights set on ensnaring Israel and Israeli nationals in the jurisdictional web of the ICC, despite the fact that Israel is not a party to the Rome Statute (the treaty that created the ICC) and, hence, not bound by that treaty’s terms.

To accomplish her goal, Mrs. Bensouda asked Pre-Trial Chamber I (PTC I) of the Court to find that Palestine was a “state” “for purposes of the Rome Statute” so she could then assert jurisdiction over Israeli actions in the so-called “occupied Palestinian territories” (oPt), which she understood to encompass the West Bank, east Jerusalem, and the Gaza Strip. The problem with her position concerning the so-called oPt, however, is that those very same territories are also claimed by Israel. Accordingly, at best, they are disputed territories.

Unfortunately, a two-judge majority of PTC I bought Mrs. Bensouda’s flawed arguments and concluded that Palestine was such a “state” (i.e., for purposes of the Rome Statute). That has created a royal mess for her successor as Prosecutor. Despite the fact that no Palestinian political entity has ever exercised sovereign control over a single square inch of the territories in question, the PTC I majority nonetheless concluded that a Palestinian state existed there. Their decision simply disregarded the fact that the international community has stated repeatedly that the division of such territory between the claimants must be decided by the parties themselves through bilateral negotiations, which is the very means both Palestinian and Israeli officials have agreed to. Further, the majority’s decision disregarded the customary international law criteria for determining statehood (which is the governing law!) and applied a different standard when dealing with Israel. So much for equal justice under the law!

Then, pursuant to the legally questionable PTC I decision in her favor, Mrs. Bensouda started the ball rolling in earnest by beginning the process of gathering “evidence” of alleged war crimes and crimes against humanity purportedly committed by Israeli nationals “on Palestinian soil” (which, as we have pointed out, is a premature conclusion since the bilateral negotiations agreed to by both Palestinians and Israelis for answering that question have yet to take place).

The Palestinian-Israeli question has been a political minefield for decades. By actions of the prior ICC Prosecutor and the decision of the PTC I majority, Mr. Khan’s office (the Office of the Prosecutor (OTP)) has been thrust into one of the most intractable—if not the most intractable—political morasses in the world today. And it has certainly not helped nudge the parties to the negotiating table. In fact, it has done the exact opposite.

With that in mind, we have written to Mr. Khan via our European Centre for Law and Justice (ECLJ) affiliate to do the following: (1) to introduce ourselves and wish him well in his new position; (2) to relay our concerns about his predecessor’s actions vis-à-vis the issue of Palestinian “statehood” and encourage him to correct her mistakes forthwith in order to extricate his office from a lose-lose situation; and (3) to advise him that we will continue to submit legal memoranda and other correspondence as we deem necessary to ensure that the OTP and the ICC bring their actions into conformity with customary international law and to encourage the OTP and the ICC to follow the law and eschew politics in making legal decisions (in other words, to encourage them to keep in mind, that, to be just, the law must be applied even-handedly and not single out disfavored states or groups for detrimental treatment).

The constant attacks against Israel and other law-abiding, democratic states (like the United States, which, like Israel, has also declined to accede to the ICC) have to stop. Rather than serve as a means to obtain justice for victims of horrendous crimes and bring the worst criminals before the bar to answer for their crimes, the OTP and the ICC instead pursue nationals of countries whose legal systems are robust, fair, apolitical, and committed to pursuing justice. What the OTP and the ICC have been doing under the previous Prosecutor was not justice; it was the perversion of justice. The new Prosecutor has an opportunity to take steps to correct those injustices, and our letter encourages him to do so.

As such, the arrival of a new Prosecutor is another opportunity for us to relay our concerns about the Court and the directions it is taking and to suggest actions that could improve the standing of the Court and bring its actions and operations into conformity with customary international law. We view any movement away from politically motivated investigations and trials as a success, although we are not so naïve as to believe that the ICC as an institution will be purged of political biases and antisemitic leanings and become a respectable, apolitical, judicial body any time soon.

Nevertheless, some matters are simply too important to disregard. Antisemitic attacks on the world’s only Jewish state and the only democratic state in the Middle East is one of them. In many ways, Israel is the canary in the mineshaft. Attacks that succeed against Israel will then be turned against the democratic states of the West whose values are based on Judeo-Christian principles.

The ACLJ and our European affiliate, the ECLJ, are dedicated to upholding the rule of law internationally. We are also dedicated to fighting antisemitism whenever and wherever it raises its ugly head. Accordingly, interacting with the ICC and assisting our ally and friend Israel in this fight are both a solemn duty and a high honor for us.

Please join with the ACLJ as we assist Israel in this righteous fight. Stand with the ACLJ and sign on to our Petition To Defend Israel From Lawfare at the ICC.