Flaws in International Law Were Exploited Against Israel at the ICC

Many of us are somewhere between perplexed and outraged by the decision of the International Criminal Court (ICC) to issue arrest warrants for Netanyahu and Gallant. How can these so-called judges believe that Israel’s goal is to starve the population of Gaza, when it’s obviously to free the hostages and fight Hamas?

Rather than vilify the ICC or accuse the judges of anti-Israel bias and antisemitism, we need to better understand the rules the ICC goes by and exactly what the judges decided. Then we’ll see that what’s really happening is that poorly conceived international law is being exploited to Israel’s detriment.

Regular Criminal Indictments

To better understand what’s going on with Bibi and Gallant, we need to compare this case to a regular criminal indictment. I’ll base myself on the legal system in the United States, since for many of us it is familiar.

The police gather evidence and bring it to a district attorney (DA). The DA then decides whether or not the evidence is sufficient to merit pressing charges. Since being accused of a crime harms a person’s reputation and finances even if they are later found innocent, before issuing an indictment the DA must convince a grand jury that there is ‘probable cause’ that the defendant is guilty. The grand jury is a check on the DA’s discretion.

Since this is only an indictment, not a determination of guilt, the legal standard required at the grand jury stage purposefully lenient. Probable cause is commonly understood to mean ‘a reasonable belief based on evidence’. It does not require certainty, or even proving that the belief is more likely true than false. Only that the accusation is based on evidence, not the DA’s suspicions or a mere hunch.

Grand jury proceedings rely only on evidence presented by the DA and are conducted in secret, so if no charges are approved the defendant’s reputation will not be harmed. Of course this also means that the defendant does not get to tell their side of the story. But this is an acceptable compromise, because if the grand jury does approve an indictment the suspect is then arrested and put on trial. At that point the defendant can testify, confront witnesses, and present their own evidence. At trial guilt will also have to be proven to the highest level of certainty, beyond a reasonable doubt.

The ICC

ICC proceedings are different in two ways. First, while police can investigate any crime, there are significant restrictions on when the ICC can open an investigation. One of these is that the prosecutor must first notify affected countries to give them the opportunity to conduct investigations of their own. This is to ensure the principle of complementarity- the ICC is meant to step in only when a country's justice system is unable or unwilling to prosecute atrocities, and may not take action when a country is doing so itself. Israel claims the prosecutor failed to do this properly. Under ICC procedures, Israel was not allowed to object to the prosecutor requesting warrants without following these procedures until the warrants were actually issued. On December 15^th Israel submitted such a petition, and only now will that matter be heard.

Second, the ICC has only judges, not juries. So instead of a grand jury, the warrant request was reviewed by a panel of judges. But beyond that everything is pretty much the same.

One other point to note is that just as grand jury proceedings are secret, the ICC prosecutor ordinarily is not meant to publicize when he submits a warrant request to the judges. This is once again to protect the reputation of the accused should the judges decide arrest warrants are not justified. But in this case, the prosecutor held a press conference to announce his accusations to the world. He claimed the publicity was necessary because the alleged crimes were ongoing. His going public was heavily criticized by the ICC Public Council for the Defense, which represents potential ICC defendants that have not yet been formally accused.

Regular Criminal Procedures Don’t Make Sense at the ICC

The drafters of the ICC founding statute likely decided to draw so heavily on the procedures used for regular criminals because they are commonly accepted and familiar. But there are important differences between the ICC and an ordinary criminal court. This is particularly true when, as is frequently the case, the ICC investigates a head of state.

First, indicting a head of state does not just impact the individual, but also an entire country. It damages the country’s ability to conduct international relations, and warrants against the country’s leader may taint the reputation of the country as a whole, thereby harming all of its citizens. And if the leader is democratically elected, as in Israel, arrest warrants against the chief executive also interfere with the fundamental political right of citizens to choose their own leader.

Second, ICC indictments are usually not followed by a trial. Unlike in a regular criminal case, where once an arrest warrant is signed by a judge the police can go make the arrest, the ICC has no police and certainly no means of arresting a country’s Prime Minister. So in a regular case, the unfairness of a defendant not being allowed to tell their side of the story before a warrant is issued for their arrest is balanced by the fact that the arrest they have the opportunity to do that at trial. Here, with no trial pending, the arrest warrants against Bibi and Galant may well become the legal last word.

The simple conclusion would be that while probable cause makes sense as the standard for arrest in a regular criminal case, when dealing with a country’s elected leader the standard of evidence should be higher. Much more should be required before harming an entire country and violating the political rights of its citizens.

Bibi and Gallant

Let’s return now to the case of Bibi and Gallant. The legal question the panel of ICC judges had to decide was whether, based solely on the evidence presented by the prosecutor, a reasonable person might come to believe that Bibi and Gallant were guilty. The judges were not asked to decide whether they themselves were convinced of guilt, or whether guilt had been proven to any degree of certainty. Those questions are explicitly reserved for a theoretical future trial.

While we don’t know the exact evidence presented by the prosecutor, it likely included statements by UN officials and aid groups telling of their difficulties accessing the territory. It’s easy to see why that alone could be enough for the judges to issue the warrants.

The court assumes that UN officials and human rights organizations are reasonable. Many Israel supporters might disagree, but an international court would obviously take that view. Some UN officials and humanitarian organizations are familiar with the situation and based on their knowledge of the situation believe Bibi and Gallant are deliberately withholding aid from civilians. So that’s it. Nothing more is needed, because already we see reasonable people convinced by evidence that the defendants are guilty. That’s enough to issue the warrants.

International Criminal Law

International law is new, untested, and prone to suffering unintended consequences from rules whose implications have not been thoroughly considered and are not well thought out. In its approximately 20 year history, the ICC has so far issued warrants for just a few dozen people and conducted only a handful of trials. The entire concept of a standing tribunal to prosecute international atrocities is still new and something of an experiment.

What’s happening is that elements of the international justice system that have hardly ever been used and therefore haven’t yet been thoroughly scrutinized are being aggressively weaponized against Israel. Perhaps someday there will be a change and compelling evidence will be required before indicting a democratically elected leader. But right now that’s not the case, and there is an opening for those who want to pursue an anti-Israel agenda at the ICC, or for those who want to balance necessary and obvious indictments against Hamas leaders with indictments against Israelis to create a narrative of false equivalence.

As I’ve written elsewhere, something similar is happening at the International Court of Justice. Over there, the expanded legal definition of genocide and very low threshold of evidence required for the court to order temporary measures has created another prestigious legal forum friendly to Israel’s foes.

In the book of Ecclesiastes we read, “The wise man has eyes in his head, whereas a fool walks in darkness (2:14)”. Our Rabbis understand this to mean that a fool only considers the next immediate step, whereas a wise person tries to make sure steps that seem currently attractive will not have undesirable consequences in the future. Those who drafted the procedures for courts of international justice may turn out to have been fools, but unfortunately Israel is paying the price.