Turmoil at the ICC as fears rise over Israel and the U.S. interference

By Craig Mokhiber 

The delay in issuing ICC warrants for Benjamin Netanyahu and Yoav Gallant, followed by the replacement of the presiding judge, has raised serious concerns about the court's functioning and possible machinations behind the scenes. 

On May 20, 2024, the Prosecutor of the International Criminal Court (ICC), Karim Khan, submitted a request to the ICC for warrants to arrest Israeli leaders Benjamin Netanyahu and Yoav Gallant for war crimes and crimes against humanity, including extermination. 

In the same statement, he included an extraordinary warning, saying “I insist that all attempts to impede, intimidate or improperly influence the officials of this Court must cease immediately. My Office will not hesitate to act pursuant to article 70 of the Rome Statute if such conduct continues.”

The Prosecutor did not elaborate on the source of the threats against the ICC officials. 

The Court, in accordance with its established procedures, then assigned the case to a three-judge, pre-trial chamber, presided over by Judge Iulia Motoc.  

Only eight days after the Prosecutor announced the warrant requests and his warning about intimidation of Court officials, the Guardian and +972 Magazine published an exposé revealing a decade of interference, pressure, and threats by notorious Israeli intelligence agencies against personnel of the International Criminal Court in order to derail investigations of Israeli crimes. 

But by then the Court had gone silent on the Palestine file- a silence that would last for five months. Court watchers were left to wonder, and worry, about the unprecedented delay in the issuance of the warrants. 

And then, as if on cue, sometime around early October, pro-Israel publications began circulating anonymous allegations accusing the ICC Prosecutor of harassing a female staff member. 

Just days later, on October 20, 2024, the ICC announced that Motoc, the Presiding Judge of the three-judge pre-trial chamber assigned to decide whether to issue arrest warrants for Israel’s Prime Minister and Defense Minister, had suddenly stepped down. 

Citing unspecified “health reasons,” the Court provided no further information. Motoc was replaced by Slovenian Judge Beti Hohler, with French Judge Nicolas Guillou now Presiding over the chamber. 

In ordinary times, these developments might hardly be noticed. But these are not ordinary times, and this is no ordinary case. 

Israel, a state that had enjoyed 75 years of Western-backed impunity, was finally, it seemed, being called to account for its crimes. Already on trial for genocide in the International Court of Justice (ICJ), and the subject of a series of provisional orders there, Israeli leaders received notice in May from across town in The Hague that the net was continuing to close. 

The request submitted in May by the prosecutor to the ICC for warrants to arrest Benjamin Netanyahu and Yoav Gallant brought a predictable response from Israel, which launched angry recriminations, invective, and the usual tactical smears against the Court. 

It was instantly joined by its Western government allies in attacking the Prosecutor’s request, with U.S. officials going so far as to threaten the Court itself. 

Now, the delay in issuing the warrants, followed by the announcement of the replacement of the presiding judge, has raised serious concerns about the functioning of the Court, and about possible machinations behind the scenes. 

Interference and delays

The situation of this five-month delay coming within almost a full decade of stalling since the first preliminary investigation of Israel’s crimes in Palestine was opened has only exacerbated those fears. 

By comparison, a request for a warrant for Russian President Vladimir Putin was fulfilled by the ICC in three weeks. And in its other cases, the Court has on average taken about eight weeks to issue warrants. 

The coming of these latest developments on the heels of revelations of years of threats and harassment of judges and court officials by Israeli intelligence operatives and Western government officials has put the followers of the Court and opponents of Israeli impunity on heightened alert. 

In one case, the head of the Mossad himself threatened the previous ICC Prosecutor Fatou Bensouda and her family. (To her credit, Bensouda resisted the attacks and, acting with exemplary courage and principle, proceeded to open an investigation on Israeli crimes). 

The change in Judges in this case is expected to further prolong the decision on the warrants in an already inordinately delayed process. And the unprecedented (and now compounded) delays have raised questions about whether there are “behind the scenes” factors at play. 

But Israel is not the only state interfering with the work of the ICC. Acting on Israel’s behalf, U.S. legislators, the State Department, and U.S. National Security Council officials have joined forces to pressure, threaten and try to derail the case against Israeli officials, even threatening sanctions against the Court. 

Substantive risks

While it is impossible to know how these judges will ultimately rule, and there is nothing in the public record that would call into question their judicial integrity, changes in the chamber’s composition could also have important substantive implications. 

For example, new Judge Hohler published an article in 2015 (long before joining the ICC) in which she suggested that complementarity may bar scrutiny of Israel because “Israel in general has a well-functioning legal system headed by a respected Supreme Court.” 

Leaving aside the broad international criticism of the Israeli Supreme Court (already evident in 2015) for its long record of approving apartheid policies and state crimes against Palestinians, and for its long record of tolerance of Israeli war crimes, it has since become clear that Israel has no intention of investigating or prosecuting Netanyahu or Gallant for the crimes alleged in the ICC Prosecutor’s request for arrest warrants. 

We must hope that Judge Hohler will by now realize that any complementarity objections (i.e., that Israel will investigate itself) are entirely without merit, as the ICJ has already found. But her earlier deeply distorted assessment of the Israeli justice system is nevertheless cause for concern. 

And, in the same article, Judge Hohler also implied that external political considerations may influence Court decisions because “the ICC is heavily dependent on the support of its states parties, including for any type of enforcement as well as for actually ensuring the attendance of suspected perpetrators at The Hague.” 

While that may be true, and many parties to the (Rome) statute of the ICC are Western allies of Israel, concerns about implementation should play no role in decisions of the Judges on the merits. 

For his part, new Presiding Judge Guillou of France came to the Court with a strong “counterterrorism” profile. He served previously as the Chef de Cabinet for the President of the Special Tribunal for Lebanon, which convicted a member of Hezbollah in the 2005 assassination of Rafik Harri, and as a former Liaison to the U.S. Justice Department where he worked with the U.S. on (inter alia) counterterrorism prosecutions in the height of the highly abusive U.S. “war on terrorism.”  

Judge Guillou has also (before joining the Court) argued publicly for the prosecution of non-state “terrorism” in international tribunals (which has only ever happened in the Lebanon Tribunal which he served), despite the lack of a definition of terrorism in international law and over the objections of human rights defenders and others concerned about the corrosive legal effect of “War on Terror” framings in criminal matters and in situations of armed conflict. 

None of this proves any irregularities in the change of composition of the chamber, nor suggests any evidence of anything unethical on the part of the judges. But neither is the law a machine in which decisions are reached based on the neutral application of law to the facts. The opinions, experiences, predispositions, and biases of judges matter. Anyone seeking to influence the court will know this. 

And this fact does not even factor in the corrupting influence of the Israeli threats and the U.S. pressure campaigns against ICC personnel. 

Human rights defenders remember well how a similar pressure campaign launched by Israel against Judge Richard Goldstone, who headed the UN Fact Finding Mission on Gaza in 2009, compelled Goldstone to essentially recant the findings of the Mission, effectively destroying his reputation in international legal and human rights circles after a decades-long and storied career in the law. 

Accusing the Prosecutor

Adding to worries about attacks on the Court’s independence, in October a small, anonymous X account tweeted unsubstantiated third-party allegations that ICC Prosecutor Karim Khan had harassed a female staff member. 

Somehow, the Daily Mail, a right-wing, pro-Israel English tabloid (that had become notorious for publishing Israeli disinformation, and that has been banned by English Wikipedia for its unreliability and fabrications) found this small X account and reprinted the allegations. From there, the story was repeated by pro-Israel news sites across the West.   

While it is impossible to know if there is any truth to the allegations, Khan has denied them and said they are part of the campaign of threats and harassment against he and the Court for their work. 

For her part, the alleged victim filed no complaint, and neither she nor the Court’s Independent Oversight Mechanism (IOM) saw fit to proceed with any investigations or charges. 

What is clear, however, is that this anonymous accusation quickly became fodder for a campaign of delegitimization against the Prosecutor and, by extension, the ICC. 

Pro-Israel media and proxy groups, seeing the propaganda value of linking the allegations to the case against Netanyahu and Gallant, reported them with headlines like “War Crimes Prosecutor Who Charged Netanyahu Accused of Sexual Misconduct”, in a clear attempt to discredit the charges against the Israeli defendants. 

Hustling the Hague

What we do know is that (1) the Court, either out of fear or favor, has long been reticent to move forward on cases against Israelis, (2) Israeli and Western intelligence agencies and government actors have been working to pressure ICC judges and court officials, and (3) the delays on the Palestine file are already unprecedented.

With this knowledge, we must at least ask three questions:

First, whether Judge Motoc’s “health grounds” were contributed to or were cover for something more sinister. 

Secondly, whether the subsequent replacement appointments were at all influenced by the substantive positions of the judges, presumed or real.  

And third, whether the changes were designed to justify further delays in the proceedings, thereby benefitting Israeli defendants and providing more time for backroom manipulation. 

Barring further leaks or revelations from the ICC, we may not know the answer to these questions until the gavel has banged, if at all. 

But knowing the fact that the judicial delays continue to grow even as extermination in Palestine continues unabated, coupled with the knowledge that nefarious actors have been targeting the Court to obstruct justice, public vigilance is imperative. 

Both the ICC and those who would seek to corrupt it should be on notice that the world is watching. 

Reputational risk

Indeed, the reputations of the ICC, its judges, and its current prosecutor are already badly tattered, owing not only to a decade of delays on the Palestine file but also to a dramatic imbalance in action globally. 

The Court has focused almost entirely on the global South, and on presumed adversaries of the West. To date, perpetrators from Israel and all other Western countries have enjoyed complete impunity under the Rome Statute of the ICC. 

For States in the Global South, and justice advocates around the World, the ICC is increasingly suspect. A failure to deliver justice in the current case, and any perception of bias on behalf of Israel, any concession to U.S. pressure, or to the Court’s Western sponsors, will almost certainly represent the beginning of the end of the ICC. 

Prosecuting offenses against the administration of justice

But Israel and the U.S. should take particular note. The risk they face goes beyond mere reputational risk. The kind of interference in which they have been involved is not only a moral outrage but also a breach of international law. 

And some of the acts revealed could be subject to criminal prosecution by the Court itself. 

Article 70 of the Rome Statute of the ICC codifies crimes against the administration of justice, and, importantly, grants the Court jurisdiction to prosecute these crimes. 

These include “impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties”, and “retaliating against an official of the Court on account of duties performed by that or another official” (among other offenses). 

Those convicted of these offenses can be imprisoned by the ICC for up to five years. 

Additionally, every State Party to the Rome Statute would be legally obliged to prosecute any such offenses if they are committed by its nationals or on its territory. While the US and Israel are not parties to the ICC, most of its closest Western allies are and would be compelled to cooperate. 

And the Netherlands, in which the ICC is situated, is obliged under a host country agreement with the Court to ensure the safety and security of Court personnel and to protect the ICC from interference. 

Indeed, Dutch prosecutors are now considering legal action against senior Israeli intelligence officials for their pressure and threats against ICC officials in the Palestine cases. 

Last chance for justice

The risks to the ICC are real. 

Both Israel and the U.S. have demonstrated that they have no respect for the rule of law, and no qualms about threatening or otherwise corrupting the Court. 

And the ICC itself has a long way to go to prove to the world that it is committed to its mandated role of universal justice rather than serving as a mere selective arm of Western power. 

But the strength of the case against Netanyahu, Gallant, and other Israeli leaders, in the world’s first live-streamed genocide, and under the glare of unprecedented public attention, gives reason for hope. 

Today, Israel is on trial, its leaders are on trial, and the system of international justice itself is on trial.

Nefarious actors are working both publicly and in the shadows to obstruct the course of justice. 

If justice is to prevail, we must all remain vigilant.