Impunity or Accountability: Which Will Hurt Israel or Fuel Antisemitism?

Those concerned about the injurious potential to the rule of law of Congress’s H.R. 23 bill were no doubt relieved by news that Senate Democrats blocked its passage on Jan. 28. The reprieve, however, remained fleeting, given the suggestion that the Democrats blocked the bill because their Republican colleagues had refused to negotiate a version that would still “sanction” the International Criminal Court (ICC) without “sanctioning” U.S. citizens, companies, or allies.

The reprieve likely dissipated entirely when President Trump signed an executive order imposing “sanctions” against the ICC, following Israeli Prime Minister Benjamin Netanyahu’s visit with him. Notably, President Trump’s stated reasons for his executive order reprise some of the concerns—such as bias against Israel, “false moral equivalency,” and nonconsent to jurisdiction—reasons that Senate Minority Leader Chuck Schumer (D-N.Y.) also indicated as acceptable reasons to “sanction” the ICC. In this commentary, the term “sanctions” and its derivatives are consistently rendered in quotes, because the terminology of “sanctions” has been traditionally reserved in international relations for countermeasures against persons or entities that engage in unlawful conduct, such as terrorism, drug trafficking, human trafficking, unlawful weapons trafficking, nuclear proliferation, and the like. The term should not be used—let alone normalized—in a manner that converts it into acceptable terminology for an unlawful act of coercion, bullying, or intimidation against a court of law that is discharging its mandate in accordance with international law.

President Trump’s executive order is entirely unsurprising considering that he had also imposed “sanctions” against the ICC’s chief prosecutor during his first administration. But Senate Democrats’ sympathy for “sanctions” against the ICC is another matter. When Sen. Schumer and presumably his colleagues voice ICC-related concerns, those concerns must be taken seriously and addressed in good faith—notwithstanding that their claims evidently overlap with those of President Trump and the protagonists of H.R. 23. That is the aim of this piece, which proceeds on the presumption that at least some of the policymakers who have expressed harsh and uncomplimentary views of the ICC may genuinely have lacked correct information about the court.

In this commentary, I shall begin with the allegation that the ICC harbors deep anti-Israel bias that fuels antisemitism—the allegation that informs the title of this piece. I shall also discuss here the much-traveled objection to “false moral equivalency” and the claim that the ICC may not exercise jurisdiction over nationals of a state not party to its founding treaty, the Rome Statute. Having already discussed the difficulties confronting the claim of self-defense in a previous Lawfare essay, I shall not repeat the discussion here.

The “Anti-Israel Bias” That Promotes “Antisemitism” 

A “critical eye”—such as that with which Sen. Schumer has viewed the ICC—can be a good thing to have when looking at human institutions including U.S. courts. Human institutions are never perfect. Done in good faith, the critical eye can lead to improvements. I, too, had reason to view aspects of the ICC’s operations with a critical eye, even as I served in it and eventually led it. Yet not all criticisms are wholly fair in the light of real facts.

Among the complaints that have been leveled against the ICC is “deep anti-Israel bias” that “fuels antisemitism” around the world. It is a most serious allegation. I will address it first.

The allegation is not true. Quite the contrary, the facts reveal an unusually favorable treatment accorded to the Israeli leaders—Prime Minister Netanyahu and his former minister of defense, Yoav Gallant—for whom the ICC has issued arrest warrants.

It has become regrettably customary that individuals under investigation or prosecution at the ICC—and their (conscious or instinctive) sympathizers—routinely accuse the court of “bias” against their nationality or race. I, more than most, can attest to that unfortunate phenomenon. For many years, some African leaders complained endlessly that the ICC was anti-African and racist because some African leaders—specifically Sudanese President Omar al-Bashir; Kenyan President Uhuru Kenyatta; Kenyan Vice President William Samoei Ruto (as he then was); Côte d’Ivoire’s former President Laurent Gbagbo, his wife, and one of his ministers; and former Vice President Jean-Pierre Bemba of the Democratic Republic of the Congo—were being investigated or prosecuted at the ICC. I was a judge at the court when all these cases were being either investigated or prosecuted—and I sat in some of them, even in the position of presiding judge. That all the ICC cases at the time came from Africa only served to lend an air of plausibility to that allegation of bias. As a judge of the court and later its president—and a Black African—I categorically and consistently disagreed with the characterization of the court as racist or anti-African. I encouraged everyone to remain focused on justice for victims of atrocities, rather than yield to these pro-suspect distractions that deflect attention from the horrors that victims endured. 

The only bias that may be rightly ascribed to the ICC is bias against criminal atrocity. But experience has shown that suspects of criminal conduct—especially those with ready access or connection to systems and structures of mass communication—will boldly and selfishly hail that kind of bias as hurtful national or racial “bias” finally revealed through the legal process brought against them. It is not difficult to see how these meritless allegations of folk “bias” will pull the heartstrings of kinsfolk and friends given the “us against the enemy” bipolarity that the conflicts that animate international criminal law almost always assume. It doesn’t validate allegations of national or racial bias that are routinely leveled against the ICC.

And here we go again. The truth is that the ICC is not biased against Israel any more than it was or is biased against Africa. As a preliminary matter, it is important to reiterate that the ICC is concerned only with the criminal responsibility of individuals—never states. The court is not prosecuting Israel. It never will.

As to the substance of the allegation of anti-Israel bias and fueling of antisemitism, consider the following: First, in addition to situations in the African countries whose leaders were mentioned earlier, the court has also investigated situations in Ukraine (in relation to Russia’s invasion), Georgia (in relation to South Ossetia), Venezuela, Myanmar, Darfur (Sudan), Uganda, the Philippines, Mali, Central African Republic, Libya, Burundi, and Afghanistan (in relation to allegations against the Taliban and others, as well as the allegations of torture made against American security personnel that Sen. Dianne Feinstein’s committee reported in 2014). If we accept that the court is anti-Israel and fueling antisemitism—merely because its prosecutor is investigating the situation in Palestine, including the conduct of Israeli leaders and soldiers in the Gaza war—then we must, by a parity of reasoning, accept that the court is “anti-” all these other countries (whose situations or citizens the court’s prosecutors had investigated before Gaza), thus promoting global hatred against those who share nationality or race with the suspects. 

It is, of course, beyond the control of the ICC that anyone may insist that to investigate or prosecute the prime minister and defense minister of Israel is to prosecute the state of Israel. That, too, would be the case for any other state—notably Russia, Venezuela, Sudan, Myanmar, Kenya, or the Philippines—whose leader is investigated for wrongdoing at the ICC. That attitude represents a latter-day redux of Louis XIV’s infamous “l’état c’est moi!” apostrophe. Many reasonable people effectively reject that political hypothesis in the wholly sensible view that the fate of leaders is not tied inextricably to that of their nations.

Second, the arrest warrants against Netanyahu and Gallant were the direct product of what appears to many reasonable observers as excessive in aspects of their military campaign in Gaza, compounded by their own statements that allegedly reveal what criminal lawyers call mens rea—the mindset to produce the conduct that is seen or felt. The ICC is not the only institution troubled by these military excesses. Both Sen. Schumer and President Biden also strongly criticized the way in which Netanyahu and his colleagues conducted their military operations in Gaza. French President Emmanuel Macron also did so. So, too, did Canadian Prime Minister Justin Trudeau, as well as the prime ministers of Australia and New Zealand. Netanyahu quite simply brushed aside these criticisms and carried on with the impugned conduct. But those criticisms could not fairly be branded as anti-Israeli conduct that fuels antisemitism, any more than it is fair to so brand the ICC processes. Notably, the conduct of war that Schumer, Biden, and their fellow world leaders—allies of Israel—condemn as excessive is conduct that the ICC has an obligation to subject to the imperatives of accountability.

Third, renowned legal experts provided prior supportive legal opinion that gave confidence to the criminal proceedings against Netanyahu and Gallant. One of those experts is Ted Meron. No ordinary legal expert, Meron served earlier in his career as the legal adviser to the Israeli Ministry of Foreign Affairs and later as Ambassador of Israel to Canada and to the UN in Geneva. Meron is also a Holocaust survivor in his own right, having spent time as a child in a Nazi labor camp. To call ICC “anti-Israel” or antisemitic for the arrest warrants is inescapably to call Meron anti-Israel or antisemitic by implication.

Fourth, the facts actually reveal an unusually favorable treatment of the Israeli nationals now the subject of ICC investigations. Here, the allegation of anti-Israel bias requires keeping in mind that the arrest warrants against Netanyahu and Gallant do not include any charge related to the crime of genocide—not even a charge of direct and public incitement that many would see as naturally resulting from Netanyahu’s biblical invocation of “Amalek” in his speech at the commencement of the Israeli Defense Forces’ (IDF’s) operations in Gaza. Yet there are many credible organizations and persons who suggest or allege that the IDF’s operations in Gaza crossed the genocidal line. They include the following: the International Court of Justice, the U.S. Federal District Court for the Northern District of California, a UN Special Committee, a group of over 20 UN human rights mandate holders, the UN Special Rapporteur on the situation of human rights in the Palestinian territories, Amnesty International, Human Rights Watch, the University Network for Human Rights, groups of academics, and individual experts in the field of genocide research. Many of those known to have expressed that view are Israeli nationals, Jewish persons, or both.

In the modern history of international law, individuals have been prosecuted and convicted of genocide for saying and doing much less than what Israel’s leaders are accused of saying and doing in relation to Gaza. That the ICC chief prosecutor has refrained from proceeding on genocide charges here supports the view that the ICC has treated Netanyahu and Gallant more favorably than how the same ICC and other international courts have treated others whom they have charged with—let alone convicted of—genocide.

Consider, for instance, that the carnage of mortality directly attributed to IDF operations in Gaza now numbers more than 45,000 fatalities. Such a death toll was never attributed to Sudan’s al-Bashir nor to anything he ever said that approximated the Amalek rhetoric; yet the ICC issued an arrest warrant against al-Bashir in relation to three counts of genocide, among other charges. The International Criminal Tribunal for the former Yugoslavia convicted both Radovan Karadžić and Ratko Mladić of international crimes including genocide in Srebrenica. Their crimes included the killing of between 7,000 and 8,000 Bosnian Muslim men and boys and the forcible transfer of over 20,000 Bosnian Muslims who “did not have a genuine choice but to leave” Srebrenica. Those numbers are a lot fewer than the number of homicides and forcible transfers seen in Gaza. Are we truly free to ignore those facts as we think of anti-Israel bias?

The failure of the ICC prosecutor to charge Netanyahu and Gallant with genocide given the much heavier death toll that followed baneful oratory does not justify the allegation of any level of bias against Israel. To the contrary, it suggests comparatively favorable treatment.

The Objection of “False Moral Equivalency” 

Some ICC critics argue that another way to appreciate the ICC’s deep anti-Israel bias and fueling of antisemitism is that the ICC chief prosecutor’s application for arrest warrants against the two Israeli leaders was made at the same time as that against three Hamas leaders. Netanyahu promptly branded the simultaneous application as “false moral equivalency.” There are many problems with this objection. For one, it is not a legal defense. Even worse, no one has taken the trouble to explain the real point of the complaint beyond its repeated echoing. We can assume that the concern’s intention is not that the prosecutor should not have requested arrest warrants only against Israeli leaders. That would be wholly unacceptable given Hamas’s attacks against civilians and their taking of hostages on Oct. 7, 2023. But does the complaint mean that the prosecutor should have requested arrest warrants on different dates for the Israeli leaders and the Hamas leaders? The substantive inadequacy of such a complaint should invite no extended discussion.

What the point must reasonably preclude is that there can be no accountability for Israeli leaders regardless of what they do in an armed conflict with a group they consider to be terrorists. Such reasoning would open a new avenue of impunity for leaders of state given that, throughout history, some of the gravest atrocities that humanity has known have been committed by governments in wars they claim to fight against “terrorism” and variegated “criminality.” This new-fangled objection to “false moral equivalency” will amount to a new gift of impunity whenever national leaders are required to account for their excesses against people whom they consider unworthy of equal consideration. 

The “false moral equivalency” objection is by any other name a throwback to the just war doctrine—an ancient theory that once allowed everyone and their allies to claim “just cause” for brutal warfare. The absence of a credible and generally accepted arbiter of such a claim led to its eventual interment as a legal notion. International law is now clear on what those fighting wars must not do, however just they view their cause. They mustn’t attack civilians during war. Period. Their relative causes—that they are fighting “existential” wars (as Israeli leaders claim) or wars of “liberation” from extreme tyranny (as Hamas leaders claim)—are irrelevant. Just as irrelevant is the political characterization of the governments or societies—that they are democracies or cagelings—when the conduct of their individual members invites accountability.

The “false moral equivalency” remonstration—whether made on the side of the Israeli government and its allies (as has been mostly the case) or on the side of Hamas (as has also been the case)—is unlawful in international law. This is because the objection’s essence is that only the atrocities alleged against the opposite side of the conflict should be the subject of the ICC judicial inquiry. The effect of that objection is that victims of atrocities on the side favored by the objection deserve the protection of the law, and the victims on the opposite side are unworthy of equal protection of the law. In the context of the Gaza conflict, that outlook entails, at a minimum, a violation of the International Convention on the Elimination of All Forms of Racial Discrimination—notwithstanding that intent to discriminate may not have been on the minds of the protagonists of the objection. The Committee on the Elimination of Racial Discrimination has explained that the prohibition of racial discrimination operates against discrimination that was “either the purpose or the effect.”

The Question of Consent

The declared premise of the anti-ICC “sanctions” in the U.S. House of Representatives—the H.R. 23 bill—is that the ICC may not exercise jurisdiction over a citizen of “the United States” or of “a U.S. ally”—if the person’s state of nationality has not consented to the jurisdiction of the ICC by becoming a party to the Rome Statute. This consent-based objection implies that it is illegitimate for the ICC to exercise jurisdiction against such a person—notwithstanding that the culprit violated international law on the territory of an ICC state party (in this case, Palestine) or that such violations entailed the killing of scores of thousands of civilians on the territory of an ICC state party.

Recent events show the contradictory nature of such an argument. The United States only recently strongly supported the ICC in its efforts to prosecute Russian President Vladimir Putin and his colleagues (they now number no less than six) in relation to Russia’s invasion of Ukraine. This was notwithstanding that Russia is precisely in the same boat as Israel in the declension of consent to the ICC’s jurisdiction. Russia and Brazil employed the same consent-based objection to protect those Russian suspects from prosecution at the ICC—even as Brazil remained vocal among the vanguard of states wishing to see Israeli leaders held accountable for international crimes committed in the Gaza operations. Notably, the government of France was not beyond intoning a similar consent-based argument also in a bid to protect Netanyahu from ICC prosecution; although shortly before that, the same France had insisted that Mongolia must arrest Putin and transfer him for trial at the ICC. To complete the picture, it must similarly be recalled that Jordan and South Africa (both ICC states parties) had also declined to comply with their obligation to arrest Sudan’s President Omar al-Bashir (as he then was), but the two countries have been strong and vocal supporters of accountability for Israeli leaders at the ICC and beyond.

In the mouths of politicians and their surrogates, the consent-based objection to ICC’s jurisdiction lacks all integrity. Yet the flaw in the objection goes beyond its naked political flavor. Its greater problem is that the objection is not supported by the basic norms of international law when properly understood. In another recent piece for Lawfare, I summarized the fundamental flaw in the objection.

Conclusion

To keep this piece readable in length and general understanding—and purely for those reasons—I have deliberately refrained from engaging certain technical (but mistaken) arguments that have been published about the meaning and implication of certain provisions of the Rome Statute and how the ICC works. 

It deserves mentioning, however, that a peculiar hazard of obscure technical arguments that seek to impugn the ICC’s arrest warrants in the present circumstances is that they will unfairly provide ammunition to those who are determined to subject the ICC to unfair political attacks regardless of the truth; if not undermine the confidence of well-meaning policymakers who really want to do the right thing but lack specialist understanding of the system. Either way, the effect is the same.

But, the ethos of justice—called equity in some instances—is wise to such distracting technicalities; hence the maxim “equity looks at substance, not form.” In cases of war crimes, genocide, aggression, and crimes against humanity, the focus of justice must remain firmly on the plight of victims—as the focus of the substance of justice. The Nuremberg tribunal did that. So too must the ICC. More importantly, policymakers called upon to act against the ICC must do the same. They must focus on the plight of victims and justice for them, not on the procedural dust that lawyers and academics will generate in ways that may consciously or subconsciously confuse those unfamiliar with the ICC processes and procedures. In that regard, it is important to remember that there is a reason that the ethics of parity of treatment is called “the Golden Rule.” Its application requires us to imagine this simple question: How would the world react if the victims of the present Palestinian plight in Gaza had been Israeli civilians? Would we permit technical arguments to obstruct accountability? As justice goes for Israeli civilians, so too must it for those in Gaza.

As a wise proverb goes: “Be careful what you wish for, you may just get it.” That aphorism urges deeper reflection on some of the real-world consequences that the anti-ICC “sanctions” may animate beyond the objective legal considerations that are inevitably brought to mind. The “sanctions” will only make martyrs of the ICC and its functionaries. But it will be foolish to ignore the real prospect of negative consequences that looms in the opposite direction. The ostrich that buries its head in the sand adopts a poor strategy against danger. Here, it must be recalled that long before the issuance of the arrest warrants against Netanyahu and Gallant, two prominent Democrats—Sen. Schumer and President Biden—recognized that the manner in which Israeli leaders were conducting their military operations in Gaza was “hurting” Israel around the world. That concern was also evident in the concerns expressed by French President Macron and Canadian Prime Minister Trudeau. That hypothesis is not readily refuted, nor is anyone known to have tried. Many will continue—and reasonably so—to see that as the more sensible explanation for the anti-Israel sentiments and its feared byproduct of antisemitism that the Gaza military operations have aroused. These concerns may now be compounded by the prospect of impunity that becomes the intendment or effect of the anti-ICC “sanctions” project now afoot in Washington, D.C. If it is accepted that no individual, however highly placed, is his or her state, as King Louis XIV of France famously proclaimed himself, it becomes easier to see that holding individual Israeli leaders accountable credibly for violations of international law in Gaza and the West Bank is the path of the fullest integration of Israel into the global esteem that the country deserves.