Truth, justice and the ICC's very broken compass
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Truth, justice and the ICC's very broken compass

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The International Criminal Court building is seen in The Hague, Netherlands, in this file photo dated Jan 16, 2019. (Photo: Reuters)
The International Criminal Court building is seen in The Hague, Netherlands, in this file photo dated Jan 16, 2019. (Photo: Reuters)

In 1998, when the Statute of the International Criminal Court (ICC) was adopted, Israel's representative, Judge Eli Nathan, expressed both optimism and concern for the Court's future.

As a Holocaust survivor and humanitarian, he hoped that the Court would fulfil its mission of ending impunity for the most heinous crimes.

However, having witnessed a politically charged drafting process, with provisions aimed at targeting Israel, Judge Nathan feared that the Court's goals would be distorted for political purposes.

While acknowledging that Israel could not join such a politicised institution, Judge Nathan still hoped that the Court would ultimately achieve its high-minded objectives.

Now, more than 25 years later, it seems clear that Judge Nathan's fears have been realised.

Rather than ending impunity, the ICC's decision to issue arrest warrants for Israel's Prime Minister and former Defence Minister -- alongside a leader of Hamas (who is reportedly deceased) -- plays into the hands of a brutal terrorist organisation.

The fact that Hamas welcomed the decision highlighted the absurd, cynical equivalence it created between the atrocities committed by Hamas terrorists on Oct 7 and Israel's attempts to defend itself.

This is especially troubling given that the Court has charged Israel with intentionally targeting civilians but has not levelled similar charges against Hamas, which, after its October massacre, continues to launch rockets into Israel.

Hamas has been committing a double war crime -- targeting the Israeli civilian population and, at the same time, using Israeli hostages and Palestinian civilians as human shields.

The warrants also overlook the key principle of complementarity in the Court's Statute, which holds that the ICC can only intervene when local courts are unable or unwilling to prosecute.

It is clear that Hamas has no intention of investigating its own crimes -- on the contrary, it views every civilian death, whether Palestinian or Israeli, as a success.

In contrast, Israel has a well-established, strong legal system that has shown itself willing and capable of investigating and prosecuting violations of international law.

In fact, Israel's commitment to the rule of law was praised by the ICC Prosecutor when he visited Israel after the Oct 7 massacre.

He noted that Israel has trained lawyers who advise military commanders and a robust legal framework ensuring compliance with international humanitarian law.

The charges against Israel also demonstrate a clear disconnect from reality.

The Court accuses Israel of intentionally starving Gaza's population by imposing a "total siege", but fails to mention the over one million tonnes of food, medical supplies, and other aid that have been delivered to Gaza, despite Hamas' continued hostage-taking, missile attacks on Israel, and looting of humanitarian supplies.

The Prosecutor's decision to seek warrants against the Israeli leaders raises further concerns about the Court's impartiality.

He referred evidence to a panel of "impartial experts", but the confidentiality of the evidence and the selection process are questionable.

The panel included individuals who had previously openly expressed biased views against Israel, and many members also lacked expertise in military affairs or the laws of armed conflict.

As a result, the panel was ill-equipped to professionally assess Israel's military actions from a legal and strategic standpoint.

John Spencer, Head of the Center for Urban Warfare Studies at West Point, pointed out that Israel's efforts to minimise civilian harm are unprecedented.

He noted that, "I've never known an army to take such measures to attend to the enemy's civilian population, especially while simultaneously combating the enemy in the very same buildings.

In fact, by my analysis, Israel has implemented more precautions to prevent civilian harm than any military in history."

Mr Spencer's analysis suggests that Israel has taken more precautions to avoid civilian casualties than any military in history.

At the 1998 ICC Conference, Judge Nathan voiced his fear that the Court might become "just one more political forum to be abused for political ends by an irresponsible group of states, at their political whim."

Unfortunately, the Court's recent actions have brought that fear closer to reality.


Orna Sagiv is Ambassador of Israel to Thailand and Cambodia.

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