analysisIsrael at War

‘Israel must take aggressive action against ICC’

Israel should "immediately implement an aggressive strategy of non-cooperation," according to law professor Avi Bell.

The International Criminal Court in The Hague, Netherlands, in 2016. Credit: U.N. Photo.
The International Criminal Court in The Hague, Netherlands, in 2016. Credit: U.N. Photo.
David Isaac
David Isaac

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 on Monday.

ICC prosecutor Karim Khan dropped a bombshell earlier that day, declaring that he would seek arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for “starvation of civilians,” “willfully causing great suffering,” “intentionally directing attacks against a civilian population” and other war crimes. 

What is Israel’s best strategy to counter the ICC prosecutor’s outrageous maneuver? Analysts JNS spoke with 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, told JNS 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 U.S. 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 U.S. soldiers.

The law was dubbed the “Hague Invasion Act,” as it authorized the president “to use all means necessary” to release U.S. 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 U.S. 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 U.S. sanctions should be re-imposed on the ICC. (President Joe Biden revoked Trump’s executive order in April 2021). 

“The United States cannot stand idly by and 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, Ostrovsky said, as it lobbied the ICC to investigate Israel for war crimes. 

“The P.A. 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 P.A. 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.

If Israel turned the screws on the P.A., it would withdraw as a signatory, stripping the ICC of its (albeit fictional) jurisdiction, said Bell.

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