Massive overreach of ICC against Netanyahu is a disgrace

Arrests warrants have been placed on Israeli PM Benjamin Netanyahu and his former Defence Minister Yoav Gallant.

The action by the International Criminal Court’s Pre-Trial Chamber I to issue warrants of arrest against Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant is, as US President Joe Biden has said, outrageous.

The White House National Security Council says: “We remain deeply concerned by the prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision. The US has been clear that the ICC does not have jurisdiction over this matter. In co-ordination with partners, including Israel, we are discussing next steps.”

Why does the US assert that the ICC has no jurisdiction? The State Department made clear its thinking when the ICC prosecutor first announced he was seeking to have the court issue the warrants: “The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here.”

This principle of complementarity is set out in article 17(1) of the Rome Statute under which the ICC operates. It denies the court jurisdiction if a case is being investigated or prosecuted by a state.

The State Department said this rule was not applied because the prosecutor rushed to seek the warrants “rather than allowing the Israeli legal system a full and timely opportunity to proceed”. It said Israel had not been given the same opportunity other states had been provided in this respect. It said Israel was in fact investigating allegations associated with the current war, that the investigation was ongoing and would take time.

Australians know how difficult such processes can be, given that the investigation into allegations emerging from Afghanistan by the Brereton report still has not resulted in the start of trials eight years later.

The most disturbing aspect of this whole affair is that, despite not being party to the ICC, Israel attempted to co-operate with the prosecutor, Karim Khan (himself now under investigation), but this was derailed by Khan.

Khan was scheduled to visit Israel in May to discuss the investigation and hear what steps Israel was taking. He and his staff backed out of this at the last minute. The US State Department described this farce as calling into question the “legitimacy and credibility” of the investigation.

The truth is that Israel has an extensive system and process for fielding the examination of incidents and allegations, as highlighted in the Special Adviser Report by Air Chief Marshal Mark Binskin into the World Central Kitchen incident.

This includes the independent Fact-Finding and Assessment Mechanism. Co-operation with the FFAM is mandatory for all Israel Defence Forces personnel.

“This is very similar to the formal ADF administrative inquiry process,” Binskin wrote. “The FFAM’s independence rests in IDF directives, its position separate from the chain of command, and its connection with and leverage of the (Military Advocate General’s) own statutory independence.”

The chamber issued the warrants for crimes against humanity and war crimes. The specific war crimes alleged are using starvation as a method of warfare; murder, persecution and other inhumane acts; and intentionally directing an attack against the civilian population. This is all deeply flawed. It fails to bring into consideration the nature of this large-scale urban war, begun by Hamas and still being prosecuted by it. It fails to appreciate the scale of unavoidable damage that is consequent on such a war. It fails to acknowledge the targeting systems and precautions in attack that Binskin said were essentially the same as those by the ADF.

It takes no note of the extensive humanitarian aid and medical relief Israel has facilitated, which includes the delivery of 1,138,847 tons of aid by land, sea and air, and the opening of several new crossings. It includes ensuring that 16 of Gaza’s 36 hospitals are operational, the remainder are still standing and will be restored when possible. In their place Israel has facilitated the establishment of 14 field hospitals, three hospital ships, nine mobile medical clinics and enabled 134 new ambulances to be delivered.

The problems being faced in Gaza are no different from those faced in every urban war, including the nine-month siege of Mosul in 2016-17, which involved the RAAF, and the fighting in Fallujah in 2004. The Laws of Armed Conflict require only that states do the best they can in facilitating relief. Israel is fighting an existential war of self-defence against several sources and direction of threat, orchestrated by Iran. The fighting also must be viewed in that context.

Unfortunately the ICC is doing great damage to the credibility of its institution and the laws of armed conflict. The international community, including Australia, which played a significant role in creating the ICC, should support the US in its efforts to restore sanity to the situation. If we idly go along with this ruling, with its dismissal of the complementarity principle, we are setting ourselves up for the same disregard for our justice system. If we expose our ADF members and national leaders to this risk, the Australian people will judge the government very harshly.

Mike Kelly is a former army officer and former Labor defence materiel minister.