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On Friday 3 May, Karim A.A. Khan KC, for himself and as the current incarnation of the Office of the Prosecutor of the International Criminal Court rose (textually) to defend the prerogatives of the Office to do what it likes within its own sense of its kompetenz-kompetenz respecting, in this case allegations of wrongdoing by Israeli elected and appointed officials, with respect to whom a determination will have to be made that the Israeli courts are incapable of applying international principles and law (as seen from the ICC). It was blunt.
Officials at the International Criminal Court warned on Friday against efforts to try and sway the court after reports that Israel and its allies are attempting to dissuade the UN court from issuing arrest warrants against senior Israeli officials, including Prime Minister Benjamin Netanyahu, over the war in Gaza.
While the ICC “welcomes open communication” with government officials and non-governmental bodies alike, it will only engage in such dialogue so long as it is “consistent with its mandate under the Rome Statute to act independently and impartially,” ICC Prosecutor Karim Khan said in a statement.
“That independence and impartiality are undermined, however, when individuals threaten to retaliate… should the office, in fulfillment of its mandate, make decisions about investigations or cases falling within its jurisdiction,” he added, demanding that “all attempts to impede, intimidate or improperly influence its officials cease immediately.” (ICC prosecutor slams effort to ‘intimidate’ him on possible arrest warrants for Israelis:Karim Khan warns against trying to impede investigation into Israel’s conduct in Gaza, after US lawmakers reportedly meet with senior court officials).
It tweeted this:
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The response, perhaps was to a letter, dated 24 April 2024, to which twelve members of the U.S. Senate appended their names, addressed to Prosecutor Khan. It was blunt, but oddly so around its edges. And the signatories did not appear to spend much time on it on their social media platforms. One has to wonder. One wonders if the sudden appearance of this text is not an element in the cognitive warfare enveloping development in this conflict. But constructs also take on a life of their own. And none of its signatories has yet disavowed its contents. Either way it may be worth reading as a provocation and an indication of the trajectories of sentiment. With these caveats, and assuming, then, that it is not a construct, the text of the letter provides:
Mr. Karim A. A. Khan KC
Office of the Prosecutor
International Criminal Court
Oude Waalsdorperweg 10
The Hague, The Netherlands
Dear Mr. Khan,
We write regarding the reports that the International Criminal Court (ICC) may be considering issuing international arrest warrants against Prime Minister Benjamin Netanyahu and other Israeli officials. Such actions are illegitimate and lack legal basis, and if carried out will result in severe sanctions against you and your institution.
The ICC is attempting to punish Israel for taking legitimate actions of self-defense against their Iranian-backed aggressors. In fact, in your own words, you witnessed "scenes of calculated cruelty'' conducted by Hamas in Israel following the October 7 attacks. These arrest warrants would align the ICC with the largest state sponsor of terrorism and its proxy. To be clear, there is no moral equivalence between Hamas's terrorism and Israel's justified response.
The ICC is also prohibited by its charter from proceeding in any case unless the relevant government is unwilling or unable to police themselves. You yourself have said that "Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law." By issuing warrants, you would be calling into question the legitimacy of Israel's laws, legal system, and democratic form of government.
Issuing arrest warrants for the leaders of Israel would not only be unjustified, it would expose your organization's hypocrisy and double standards. Your office has not issued arrest warrants for Iran's Supreme Leader Ayatollah Ali Khamenei or any other Iranian official, Syrian President Bashar al Assad or any other Syrian official, or Hamas leader Ismail Haniyeh or any other Hamas official. Nor have you issued an arrest warrant for the genocidal General Secretary of the People's Republic of China, Xi Jinping, or any other Chinese official.
Finally, neither Israel nor the United States are members of the ICC and are therefore outside of your organization's supposed jurisdiction. If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel's sovereignty but to the sovereignty of the United States. Our country demonstrated in the American Service-Members' Protection Act the lengths to which we will go to protect that sovereignty.
The United States will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.
The letter, a facsimile of which appears above, appears to take the position that courts, at least in this context, are actors confined to the four corners of their jurisdictional mandates within the larger structures of the state system and international law. Somewhat interesting is that the letter did not appear to be generally circulated until 6 May 2024, well after the better reported news that "Three House Republicans from New York wrote a letter Tuesday imploring
the Biden administration to prevent the "sham prosecution" of Israeli
Prime Minister Benjamin Netanyahu and other Israeli government officials by the International Criminal Court (ICC) for alleged war crimes." (Here). More interesting is the implication that both the prosecutor, and the ICC apparatus as a whole, are in some sense political actors operating within the sensibilities and conduct expectations of a dispute resolution body (perhaps like a national Constitutional Court, e.g. here and here), and to that extent (as well as with respect to its decisions and judgments) responsible for their decisions, will have to bear the political consequences of the choices they make. But that, largely, appears to be the case for a long time within liberal democratic systems (see, e.g., here, and here).
The circulation of that letter, however, does underscore a larger and more important issue. Indeed, as Prosecutor Khan has made clear, the Kompetenz-kompetenz issue is wrapped around what might be in the end a fundamental shift in jurisdictional narratives fueling interpretive exercises: from one in which the ICC and its apparatus understand themselves as "a detached apex of the international criminal justice system" to one in which the ICC and its apparatus are embedded as "a hub of global accountability efforts." Two very different narratives fueling two very different interpretive and operational projects. Two very different structures for the development of an internationalized criminal law. And the intense scrutiny of the Jews in a context in which they are hardly the only players will produce additional lessons, especially respecting the value (now substantial) of building a human wall as a a critical structure for tactical military operations, may well become an important template in other military actions where the level of global scrutiny is less intense. Which prevails remains to be seen. But either one will exact a price. And again, the consequences of the Hamas actions on 7 October and its aftermath continue to produce some significant effects.
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