Bad company: ICC bid to arrest Bibi and Gallant (together with Hamas killers) is broadly condemned

The US and many of its allies were quick to criticize plans by the International Criminal Court’s chief prosecutor to seek arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as for Yahya Sinwar and other Hamas leaders.

President Joe Biden called Karim Khan’s announcement “outrageous.”

“Let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.”

Secretary of State Anthony Blinken said the circumstances of Khan’s announcement on Monday — made on CNN and not in an official notification to the parties involved — “call into question the legitimacy and credibility of this investigation.”

Washington “fundamentally rejects” Monday’s announcement, Blinken said. “We reject the prosecutor’s equivalence of Israel with Hamas. It is shameful. Hamas is a brutal terrorist organization that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans.”

Khan should have allowed “the Israeli legal system a full and timely opportunity to proceed” with its own “ongoing investigations into allegations against its personnel,” Blinken said.

He warned that Khan’s action could “jeopardize ongoing efforts to reach a ceasefire agreement” between Israel and Hamas that would see the release of the remaining 128 hostages.”

The charges against Netanyahu and Gallant will include “causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies [and] deliberately targeting civilians in conflict,” Khan told CNN‘s Christiane Amanpour.

Charges against Hamas terrorist leader Yahya Sinwar, chief Ismail Haniyeh and Al-Qassam Brigades armed wing head Mohammed Deif will include “extermination, murder, taking of hostages, rape and sexual assault in detention,” he said.

“Mr. Khan creates a twisted and false moral equivalency between the leaders of Israel and the henchmen of Hamas,” Netanyahu said in a video posted to social media on Monday.

“With what audacity do you dare to make a comparison between Hamas — which murdered, burned, butchered, raped, and kidnapped our brothers and sisters — and the IDF soldiers who are fighting a just war that is unparalleled, with a morality that is unmatched?” he continued.

If the court in The Hague greenlights the warrants, it would constitute an “unprecedented antisemitic hate crime,” Netanyahu warned last month after reports surfaced of Khan’s intentions. “Eighty years after the Holocaust, the international bodies established with the goal of preventing another Holocaust are considering denying the Jewish state its right to defend itself.”

Netanyahu noted that this marks the first time that a democratic country committed to international law is defending itself from accusations of war crimes while at the same time facing existential threats.

“The State of Israel is proud of its soldiers and commanders, and the values they represent,”  Gallant said on Monday. “As minister of defense, I stand with, support and commend our troops, who are defending our people and fulfilling the extraordinary privilege and obligation of defending ourselves, by ourselves.”

Israel’s Foreign Ministry will set up a “special command center” to fight any move by the International Criminal Court to issue arrest warrants against Israel’s top leaders, Foreign Minister Israel Katz announced.

In a statement published following the CNN interview, Khan’s office said he had “reasonable grounds to believe” that Netanyahu and Gallant bear criminal responsibility for “war crimes and crimes against humanity” committed since Oct. 8, 2023, the day after Hamas terrorists massacred 1,200 people, mostly civilians, inside Israel.

A panel of three justices from the ICC’s Pre-Trial Division will now consider Khan’s application for the arrest warrants.

Great Britain, the Czech Republic, and Austria immediately spoke out against the issue of equivalency.

Czech Prime Minister Petr Fiala said it was “appalling and completely unacceptable” to do so.

“We must not forget that it was Hamas that attacked Israel in October and killed, injured, and kidnapped thousands of innocent people. It was this completely unprovoked terrorist attack that led to the current war in Gaza and the suffering of civilians in Gaza, Israel, and Lebanon,” he said.

Austrian Chancellor Karl Nehammer said that the fact “that the leader of the terrorist organization Hamas — whose declared goal is the extinction of the State of Israel — is being mentioned at the same time as the democratically elected representatives of that very State is non-comprehensible.”

A spokesperson for British Prime Minister Rishi Sunak stated this action does not help the goal of “pausing the fighting, getting hostages out or getting humanitarian aid in” as he rejected the court’s jurisdiction in the matter.

Italy’s Foreign Minister Antoni Tajani decried the announcement as seemingly putting Israel and Hamas’ leaders on equal footing. “It seems extraordinary to me, I would say unacceptable, to equate a legitimately elected government in a democracy with a terrorist organization which is the cause of everything happening in the Middle East,” he said.

German Foreign Minister Annalena Baerbock expressed a similar sentiment.

France took a different view.

“We support the International Court of Justice, its independence and the fight against impunity in any situation,” said the French  foreign minister, Stéphane Séjourné.

Israel has not heeded warnings regarding “the need for strict compliance with international humanitarian law, and in particular...the unacceptable level of civilian casualties in the Gaza Strip and inadequate humanitarian access,” he added.

Congressional reaction on Monday was swift.

Senate Majority Leader Chuck Schumer called the ICC prosecutor’s action “unfair and reprehensible.”

As disappointing as the ICC’s decision is, it comes as no surprise because for decades the ICC has shown it harbors deep biases against Israel. This decision suggesting an equivalency between Israel and Hamas is another glaring example,” New York’s senior senator said in a speech on the Senate floor.

“As I have said many times, there has never been — and there never can be — any equivalency between Israel’s right to defend itself against terror and Hamas’s barbarity. The ICC’s decision seeking warrants against Israeli leaders is not only shameful but also fails to follow protocol and process in a country where it has zero jurisdiction.

New York’s junior senator, Kirsten Gillibrand, the ICC action was “absolutely disgraceful” and would “hamper efforts to reach an agreement that would release hostages and pause hostilities.”

“Israel is not a member of the ICC and therefore the ICC has no jurisdiction. The decision to seek arrest warrants is not law but politics,” wrote Rep. Ritchie Torres (D-NY). “It is not justice but rather retribution against Israel for the original sin of existing as a Jewish state and the subsequent sin of defending itself amid the deadliest day for Jews since the Holocaust.”

The ICC decision “in effect makes it criminal for a state like Israel to defend itself against an enemy shrewd enough to embed itself in a civilian population, as Hamas has done to an extent never seen before in the history of warfare,” Torres said.

“But for Oct. 7 and Hamas’s unprecedented militarization of its own civilian population and infrastructure, there would be no war in Gaza and no humanitarian crisis among Gazans,” Torres added. “Hamas is the cause of everything tragic that has ensued and Hamas alone should be the target of criminal prosecution.”

Rep. Marc Molinaro (R-NY) called the decision “a mistake” that “will forever damage the credibility of the ICC.”

“There can be no equivocation,” Molinaro wrote. “Prime Minister Netanyahu is the leader of a democracy and is defending Israel’s right to exist following the horrific Oct. 7 attacks. Hamas is a terrorist organization responsible for the deaths of thousands of Israelis and Palestinians.”

“While Israel delivers aid and protects innocent lives, Hamas terrorists take hostages and use children as shields and hospitals as armories,” wrote Sen. Rick Scott (R-Fla.). “The ICC has embarrassed itself with these sham charges against Israel’s leadership. America stands with Israel.”

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Analysts interviewed by JNS voiced offered broad agreement that Israel should take a tough stance against the court, including imposing sanctions.

Avi Bell, a law professor at the University of San Diego and at Bar-Ilan University in Ramat Gan, said that Israel should “immediately implement an aggressive strategy of non-cooperation.”

Israel should not cooperate, nor allow any citizen to cooperate, with the court. “Don’t allow anybody to go abroad to talk to them,” he said. “It’s perfectly fair given the ICC is threatening Israelis with false imprisonment and false prosecution, that it’s actively collaborating with a terrorist organization in lawfare against Israel.”

To date, Israel has pursued the opposite strategy, said Bell, sharply criticizing the Foreign Ministry and State Attorney’s Office, which have collaborated with the ICC for years.

“Just a few months ago, they invited the ICC prosecutor’s team to Israel to interview witnesses, collect evidence and coordinate with the PLO in Ramallah, which is simply unthinkable to me. I just don’t understand how anybody could be so foolish,” he told JNS.

Given their track record, officials at the Foreign Ministry and attorney general’s office are the last people that Bell said he would want to handle ICC strategy going forward.

“No matter what happens, no matter how much the strategy fails, they just don’t stop,” he said. “They keep going in the same direction.”

Israel should impose sanctions and pass legislation against the ICC similar to what America did, he said.

Eugene Kontorovich, head of the international law department at the Kohelet Policy Forum, agreed, telling JNS, “Israel must refuse any cooperation with the ICC, and pass a law similar to the US Armed Service Members’ Protection Act [ASPA], barring cooperation with the ICC, and allowing all measures to be taken against any of its officials or member states that work to arrest Israeli nationals.”

Congress passed ASPA in 2002 because it feared that the ICC would be used as a political weapon against American soldiers.

The law was dubbed the “Hague Invasion Act,” as it authorized the president “to use all means necessary” to release US and allied personnel “held captive by, on behalf, or at the request of the court,” raising the specter of an extreme scenario in which the United States would send troops to invade Holland to free its service members.

Kontorovich also urged that the United States impose sanctions similar to those imposed by former President Donald Trump via an executive order in 2020 that targeted assets and imposed entry bans on ICC officials and their families. Trump’s move came as the court debated whether to open an investigation into alleged US war crimes in Afghanistan.

“They [sanctions] work. The ICC bureaucrats want Israel to fight Hamas with both hands tied behind its back, but personally they are cowards,” said Kontorovich.

Human Rights Attorney Arsen Ostrovsky, CEO of the International Legal Forum and senior fellow at the Jerusalem-based Misgav Institute for National Security, agreed that US sanctions should be re-imposed on the ICC. (President Joe Biden revoked Trump’s executive order in April 2021). 

“ Congress should unleash a hailstorm of sanctions against prosecutor Khan and the ICC for this egregious and unforgivable action,” he said.

Israel also should hold the Palestinian Authority to account in its encouragement of the ICC, Ostrovsky said.

“The PA must also be made to understand that they cannot continue to engage in this relentless lawfare against Israel, whether at the ICC or the International Court of Justice, without consequences,” he said, listing withholding of tax revenues and punitive diplomatic measures as potential options.

Bell also suggested that the PA.be targeted, noting that the ICC’s “been cooking up charges against Israelis in cooperation with the PLO since 2009.”

The ICC has no jurisdiction in Israel as Jerusalem is not a signatory to the Rome Statute, which established the court. The ICC has “cooked up” jurisdiction by accepting the “State of Palestine,” which does not exist, as a signatory in 2015, Bell said, noting that the PLO had no authority to become a signatory and it was contrary to its agreements with Israel.