ICC Kangaroo Court in Session

As if legal systems, and international bodies like the United Nations, needed any assistance in further damaging the public’s perception of their hypocrisy, the International Criminal Court (ICC) has sullied the name of the rule of law even more. 

It’s really time for the United States to withdraw its funding to kangaroo courts like the International Court of Justice. The names of these are laughable misnomers (‘justice”?), not unlike the Human Rights Council of the U.N., which occasionally features humanitarians like Iran and Syria as members in good standing.

The United States Senate should expedite passage of the Illegitimate Court Counteraction Act. It already has bipartisan congressional support. Under this measure, ICC officials, and their outside experts, who abuse their authority by prosecuting leaders from the U.S. and its democratic allies, would be unwelcome in America. 

George Clooney’s wife, Amal, for instance, would kindly be asked to leave. More about that later.

Last week, Israeli Prime Minister Benjamin Netanyahu, America’s ally, learned that the ICC had issued a warrant for his arrest. Yes, the prime minister of Israel, and his former defense minister, Yoav Gallant, are now international outlaws. If this legal farce can happen to them, it will most certainly happen to an American leader sometime very soon.

What judicial wisdom was revealed by the anti-Western, antisemitic haters from The Hague? Netanyahu and Gallant are being charged with starvation as a method of warfare; crimes against humanity; and “intentionally directing an attack against the civilian population” of Gaza.

Each of these charges stem from Israel’s retaliation against Hamas for the Oct. 7 massacre.

Demonstrating the ICC’s balancing of the scales of justice, one of Hamas’ former military leaders has also been charged, but, unfortunately, he is already dead. 

It doesn’t matter. What matters is that the court is drawing a moral equivalence between terrorists who behead Israeli babies, gang rape scores of Israeli teenagers, and murder, mutilate and torch 1,200 Israelis, and the undeniably just war Israel is waging in self-defense. Israeli leaders are being prosecuted for casualties of war in Gaza; the actions of Hamas, which includes causing these casualties by placing them in harm’s way as human shields … well, that’s just Arabs having fun.

This is the first time in the court’s existence, dating back to 2002 with the Rome Statute, signed by 125 nations — the United States and Israel, for obvious reasons, are not signatories — that a leader of a democratic nation has been charged. 

Democratic governance is important, because the ICC was supposed to prosecute leaders from nations that did not have functioning independent legal systems of their own. Israel most certainly does, and several investigations of its wartime conduct are already underway, directed by Israeli legal experts who are not known to cut the Jewish state any breaks.

Because Israel never signed onto the Rome Statute, the ICC has no jurisdiction or enforcement powers over Netanyahu and Gallant, anyway. In its nearly 25 years of holding court, the ICC doesn’t have much to show for itself. Take Omar al-Bashir, the former head of state in Sudan responsible for the genocide in Darfur. He has been at large since 2009, and it took six years for the I.C.C. to even obtain an enforceable arrest warrant.

 Of course, as a matter of law and procedure, this case is wholly deficient. Factually, it is groundless. Starvation as warfare requires a proving of intent that Netanyahu is fighting a war specifically to starve Gazans, and that he is “willfully impeding relief.” But Israel is fighting terrorists who steal the food that Israel is allowing into the enclave. Under international law, and siege warfare, given that this aid is ultimately feeding terrorists, Israel isn’t obligated to allow any humanitarian assistance at all — and yet it has been doing so since the war began.

The factual claim of starvation itself is in dispute. Over the summer, an agency of the U.N., the Integrated Food Security Classification System, determined that starvation in Gaza has simply not materialized, despite alarms sounding to the contrary. The ICC knows there is no actual evidence that a single Gazan has died of starvation as a result of Israel’s border policies. And there is even less evidence that Israel is fighting this war to intentionally inflict starvation on the Palestinian people.

The same specific intent requirement applies to crimes against humanity. Even dishonest brokers assessing the war in Gaza realize that Hamas started it. Israel is targeting terrorists, not civilians. Casualties of war are not victims of genocide, and the collateral damage in Gaza would be considerably less if civilians were not being used as human shields, and other civilians, of the true believer variety, wouldn’t so agreeably volunteer for human-shield duty.

How could the ICC get this so wrong? Aside from antisemitism, which is a default conclusion for many questions involving Jews, the ICC recruited four legal consultants to evaluate the case before proceeding with arrest warrants. The one thing they all shared in common: years of prejudging Israel of war crimes. The selection of the experts made the prosecution a forgone conclusion.

One is on record supporting BDS against Israel. Another falsely accused Israel of shutting off Gaza’s water supply. Israel controls less than 10% of Gaza’s water, and it has no legal obligation to hydrate Hamas. Another “expert” needs to reread the Law of War Manual, because it is not illegal to impose a siege on a civilian population when they are embedded within a terrorist fighting force. He had also already declared that Israel was committing war crimes before he took on the ICC assignment.

And the last expert, Amal Clooney, has her own long history demonizing the Jewish state.

The ICC’s Code of Conduct states that the prosecutor’s office should not “negatively affect confidence in [its] independence,” and should “refrain from expressing an opinion” that could taint its impartiality.

So much for that.

This case sets a dangerous precedent. Urban warfare against terrorists where collateral damage is a natural occurrence is being characterized as crimes against humanity. Donald Trump could easily have been charged following the Battle of Mosul, which eliminated ISIS, but resulted in thousands of civilian deaths.

For those dissatisfied that Trump largely escaped all those prosecutions against him in the United States, the ICC has just given you something new to root for.

Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro University, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. His most recent book is titled “Saving Free Speech … From Itself,” and his forthcoming book is titled, “Beyond Proportionality: Is Israel Fighting a Just War in Gaza?”