Photo: AI image for illustration only. Not a real depiction.

In coordination with former Ambassador Michael Oren, I have updated and added additional depth and background to my earlier thoughts and analysis of Thursday’s International Criminal Court (ICC) arrest warrants. The new article appears as a “guest post” on Amb. Oren’s Substack page, “Clarity.”

I hope you find it useful and illuminating!  The original post can be viewed HERE, and the full text is reproduced below:

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In the wake of the largest murder of Jews since the Holocaust, and in the midst of Israel’s desperate war of self-defense, the International Criminal Court (ICC) issued arrest warrants on Thursday against Israeli Prime Minister Netanyahu, and former Defense Minister Yoav Gallant. 

The warrants follow a request last May by Prosecutor Karim Kahn, who is presently under investigation himself for sexual misconduct. Kahn accused Netanyahu and Gallant of “war crimes” specifically, “deliberately depriving Gaza’s civilian population of essential goods, including food, water, electricity and medical supplies” as part of a “widespread and systematic attack against civilians.”

Khan’s claims are preposterous: not only is Israel fighting a war of self-defense that it did not start or desire, but Israel delivers an average of 3,729 food trucks per month into Gaza, representing an average of 3,374 kcal per person per day: almost double the needs of an average adult human. This data is from a detailed study by the Hebrew University in Jerusalem (whose conclusions can be easily verified using public information). Similar data is available regarding fuel, water, medical supplies, and all other forms of humanitarian aid. Furthermore, Israel and the World Health Organization just coordinated a massive polio vaccination campaign for children in Gaza. These are hardly the acts of a country attempting to harm, starve or kill civilians—in fact, it is exactly the opposite.

It is well verified, including by UN sources, that Hamas (the internationally designated terror organization that rules Gaza) and other crime affiliates habitually steal much of the humanitarian aid that enters Gaza, as well as torture and kill civilians who attempt to take aid for themselves.

The disturbing images of destruction that flood out of Gaza are the result of Hamas and other terror organizations abusing their civilian populations, all while stealing international aid resources to bolster their fighting forces in attacks against Israeli civilians. Meanwhile 101 Israeli hostages still remain in Hamas captivity, being starved, tortured, and raped on an ongoing basis—they have been denied all forms of humanitarian aid and, despite over a year in captivity, they have not received even a single visit from the International Red Cross.

However, in this case truth is legally irrelevant: by the ICC’s own rules, arrest warrants do not actually require proof. Instead, Prosecutor Khan is required to provide only minimal evidence that his claims are reasonably possible, and furthermore, he gets to do so ex parte  – which means alone and without Israel having the opportunity to respond, to question his claims, or to cross examine his supposed sources of evidence. 

Much like the International Court of Justice (where South Africa is suing Israel for an equally absurd claim of “genocide”), the ICC is primarily a political body in the guise of a “court.” For this very reason, neither the United States nor Israel are members of the ICC, having never signed its founding charter, the Rome Statute.

Nonetheless, the Court gave itself jurisdiction over Israel under the following rationale: the Rome Statute gives the ICC jurisdiction over matters that occur within any ICC member state. The ICC recognizes a “State of Palestine” and in 2015 accepted it as an ICC member, in violation of the Oslo Accords. Even though the “State of Palestine” does not have recognized borders, the ICC decided to unilaterally recognize Gaza and the West Bank as being “Palestinian territory,” and therefore subject to the ICC jurisdiction.

As of last Thursday, if Prime Minister Netanyahu or former Defense Minister Gallant enter any of the one hundred twenty-four ICC member states, they will be subject to arrest and deportation to The Hague to face trial and possible imprisonment for war crimes. In addition, any country that has a mutual extradition agreement with an ICC member (such as the 196 Interpol states) may also potentially cooperate in making an arrest.

Some leaders, such as France’s Emmanuel Macron and Canada’s Justin Trudeau, enthusiastically announced their intention to arrest the Israeli leaders if given the opportunity. The Netherlands has also so indicated, a cruel irony given the country’s failure to prevent a brutal pogrom against Israeli and Jewish soccer fans earlier this month. Other leaders, such as Hungary’s Viktor Orban, have rejected the arrest warrants, and U.S. President Joe Biden condemned the ICC decision, calling it “outrageous.”

The arrest warrants are not only morally reprehensible, but also pose a strategic security threat to Israel, the United States and the entire Western world. This is because the ICC has set a legal precedent that can be applied to any IDF soldier, former soldier or reservist (which includes most citizens of Israel) as well as to U.S. soldiers and civilian leadership.

The sheer scale of humanitarian aid Israel has delivered to Gaza is almost unheard of in the history of modern warfare, far surpassing the efforts of Western coalition forces in places like Syria and Afghanistan. Furthermore, Israel’s civilian to combatant casualty ratio is the lowest in modern times for a conflict of this type. Therefore, if the ICC can be weaponized against Israel, it can be even more easily weaponized to attack the United States, NATO or any other Western power.

Even though President Biden condemned the ICC decision, he also played a key role in bringing it about, and he did so in violation of U.S. law. 

America has long understood that the ICC is not a true “court” but actually a political tool that can be used as a weapon against the United States and its allies, which is why Congress passed a bipartisan law in 2002 called the American Servicemembers’ Protection Act (ASPA). The Act not only prohibits the United States from cooperating with the ICC, but also calls on Washington to defend U.S. servicemembers and U.S. allies against the ICC. 

Accordingly, a month after Prosecutor Khan’s initial request for arrest warrants last May, the U.S. House of Representatives passed a bipartisan bill to levy sanctions on Khan, the ICC, its judges and their families, in accordance with the ASPA. However, the White House publicly opposed the bill, causing it to die before even getting to the President’s desk and leaving Israel exposed to the ICC warrants without an American diplomatic defense despite being U.S. law. Thursday’s precedent endangers not only Israel but the entire Western world.

While the current U.S. administration objected to the ICC and stated that it will “discuss next steps with [America’s] partners,” President elect Donald Trump’s incoming National Security Advisor, Michael Waltz, responded more forcefully, saying, “Israel has lawfully defended its people and borders from genocidal terrorists. You can expect a strong response to the antisemitic bias of the ICC & UN come January.”

Based on the current ICC precedent, it is now effectively impossible for any nation to act in self-defense against terrorism without its leaders and soldiers being subject to imprisonment at The Hague. How the United States and its allies respond in the coming months will determine whether this precedent remains a knife at the throat of Western civilization, or whether it finds its way to what Ronald Reagan once called, “the ash heap of history.”