TEL AVIV — In May, 2024, International Criminal Court Chief Prosecutor Karim Khan, K.C., abruptly cancelled a planned trip to Israel. Khan and ICC staff were meant to meet with Israeli officials in government, the military and NGO sectors.
Instead, on the same day he cancelled, Khan appeared before a panel of ICC judges asking them to consider issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu, then Minister of Defence Yoav Gallant as well as Hamas senior leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif.
It was no secret that Khan had long been mulling the possibility of slapping arrest warrants on Israeli Prime Minister Benjamin Netanyahu. That he did so while appearing to be engaged in working with Israel and the United States, was malevolent and unprofessional.
Before asking a panel of ICC judges to consider issuing the warrants, Khan had a threshold legal and ethical duty. It was incumbent on him to provide evidence to the court that it had jurisdiction over the matter and that there was evidence to support the allegations of crimes having been committed against humanity.
In other words, Khan was pretending to plan for a trip to Israel to assess the factual basis for allegations that Israel’s prime minister, and others, had committed war crimes by deliberately starving the population of the Gaza Strip. He was also required to consider the robustness of the Israeli judicial system. If it was found to be capable of self-investigation and oversight, well, then, the ICC had no legal justification for inserting itself. This approach is hard-baked into the international legal doctrine of “complementarity” (which Khan seems to have overlooked in this case.)
Furthermore, since Israel is not a signatory to the Rome Treaty, which established the ICC in 1998 (and came into force four years later), the Court has an additional problem. Does it have jurisdiction over Israel?
No.
Neither Israel nor Palestine are signatories to the Treaty.
But that conundrum was easily solved. “Palestine” has since been deemed — on an unprecedented basis — to be a “member” or “signatory” to the Rome Treaty.
How and why?
Because when considering a previous complaint made by the Palestinian Authority against Israel, the ICC chief prosecutor at the time, Fatou Bensouda, determined that since the United Nations had accepted Palestine as a state with “observer status,” that it may also qualify as a signatory to the Rome Treaty. It was not creative. The solution was utterly disingenuous and devoid of any basis in law.
It was also political. Bensouda was under enormous pressure to accommodate the Palestinians. She was determined to finesse a way for the “State of Palestine” to be entitled to file a complaint against Israel in the International Criminal Court, a forum established to promote international justice and ideals.
One plus one equals sixteen, apparently. I mean, who needs laws or rules if you just ignore them?
Meanwhile, Khan appeared to be preparing for a significant trip on which to gather and assess evidence relating to the claims against Israel, but it seems that he was really working on his application to the Court to issue arrest warrants for two Israeli leaders and several Hamas terrorists.
Instead of conferring with the Israelis on key evidentiary issues, Khan instead huddled with his hand-picked “advisory board” of “experts” who counselled him on when and on what basis to move for the issuance of said warrants.
His reliance upon a hand picked group of outside advisers in this case is highly irregular for the ICC, which is a very well-staffed and resourced institution. Doing so seems to have been an attempt by Khan to deflect attention from him personally. Among the high profile advisers was human rights lawyer Amal Clooney, wife of celebrity actor George Clooney.
Shortly after Khan’s request for the issuance of arrest warrants, information pertaining to his alleged serial sexual harassment of ICC colleagues came to light. Whilst some commentators have speculated that this may be motivating Khan to divert attention from himself, only Khan can settle that mystery.
We do, however, know quite a few things: firstly, his conduct is neither prudent nor based in law, or fact.
We do, however, know of quite a few very salient facts. The evidence Khan provided to the ICC in support of allegations of “starvation” is not disclosed. But significant evidence refuting that claim is in the public domain.
Even UNRWA does not dispute the fact that Israel has allowed through the Erez Crossing point amounts of food aid that provide more than 3,000 calories per day per individual in Gaza. Furthermore, reams of eyewitness and video testimony affirm that armed Hamas thugs commandeer said trucks as soon as they cross into Gaza. Goods are hoarded for Hamas and PIJ terrorists and associates. Items intended to be distributed to civilians at no cost are sold on the black market for extortionate prices. This is one of the ways in which numerous Hamas leaders have become multi-billionaires over the years. The ICC seems unfazed by that.
Karim Khan did recommend that a warrant be issued for Mohammed Deif, a senior Hamas official who was killed in an Israeli airstrike in recent months. (He disputes whether Deif is actually dead.) But for some reason, Khan overlooks other living terror masterminds. Like Khaled Meshal and Mohammed Sinwar.
The real war criminals, in Khan’s corrupted assessment matrix, are Israeli leaders.
Khan’s arrest warrants are drafted to reach back to Oct. 8, 2023. This means that while Hamas terrorists were still actively slaughtering their way through southern Israel, as they held close to two dozen police officers hostage in their station in the southern city of Sderot, that Israel was actively planning to starve the civilians of Gaza.
That is malicious, untrue and unhinged.
One would think that if the Israelis had intended to starve out the population that we might have seen some evidence of that by now. And yet, we have not. Since October, 2023, famine has been reported by the UNRWA as being “imminent.” This catastrophe, mercifully, has has yet to materialize. And that is because the assertion is based on lies.
There is clearly extreme hardship among the people of Gaza. The issue is who is causing it and why. Hamas began a vicious, unprovoked war on October 7, with the stated intent of destroying Israel and murdering every Jew in sight. It is a genocidal death cult that encourages its people to martyr themselves, optimally while killing Jews. Jews. Not Israelis. “Yahud.” Jews.
This is the first time that a democratic country, with a robust and independent judiciary, has had arrest warrants issued for its leadership. This is not a reflection of courage or principle. Quite the opposite.
The reaction to this obscene miscarriage of justice has exposed very bright lines, internationally. Asked about how he would respond to these warrants, Prime Minister Justin Trudeau stated on Thursday that Canada will “abide” by the terms of the ICC arrest warrant with respect to Netanyahu, specifically.
“We stand up for international law, and we will abide by all the all the regulations and rulings of the international courts,” Trudeau said. “This is just who we are as Canadians.”
Contrastingly, Leader of the Opposition Pierre Poilievre rejected this position when asked the same question. “The prime minister of Israel is a democratically elected leader whose country is responding to an unprovoked invasion by thousands of well-armed Iranian funded terrorists,“ he said in a radio interview on Thursday. “The fact is that all of this, by the way, is orchestrated by the dictators in Tehran who have stated their desire to wipe both America and Israel off the map with nuclear weapons.“
Poilievre continues to call attention to how Canada’s response diverges from that of many western countries, most importantly, the United States. As President Biden stated on Thursday:
“The ICC issuance of arrest warrants against Israeli leaders is outrageous. Let me be clear once again: whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security. “
It is a foregone conclusion that President-Elect Trump will be even more unequivocal. He has already stated that he will impose “crippling sanctions” on the ICC. It is unlikely that he will stop there.
Justin Trudeau has aligned Canada with the global terror axis led by Iran. Even many EU members — with the exception of the Netherlands — have been much more restrained in their reaction to this development. Because they know that the ICC conduct is rooted in antisemitic hate, not law.
Canada is an outlier among democracies.
And if there is any question about that, just look at the violence directed at Canadian Jews, daily, and the implicit — often explicit — support of Hamas. Overnight, it seems, we have become the ugliest version of ourselves. The world has noticed.
National Post
Vivian Bercovici is a former Canadian ambassador to Israel and the founder of the State of Tel Aviv.