According to Israeli and international sources, the International Criminal Court (ICC) prosecutor is considering the issuance of warrants against Israeli and Hamas leaders based on the Hamas attack of Oct. 7 and Israel’s response. Rep. Rashida Tlaib (D-Mich.) has demanded the arrest of Israeli Prime Minister Benjamin Netanyahu for genocide.
But there is a problem: The ICC is precluded by the treaty that created it from investigating any individual from a state that is willing and able to conduct a genuine investigation of that person. Israel is conducting ongoing investigations of alleged war crimes and will continue to do so.
One of the central tenets of the rule of law is that courts must comply with the limits on their jurisdiction imposed by the authorities that created them. The International Criminal Court is the creation of the Rome Statute, which severely limited its jurisdiction by the rule of complementarity. This rule expressly denies the ICC the authority to be the primary investigator or prosecutor of any individual who is subject to legitimate investigation and prosecution by his or her nation.
The ICC secures complementary jurisdiction only if the nation with primary jurisdiction is unwilling or unable to conduct a fair and thorough investigation.
The signatories of the Rome Statute envisioned cases where the national judicial system had either totally or partially collapsed; is unable to “obtain an accused or key evidence and testimony;” or is “unable to carry out its proceedings” because it lacked “sufficient qualified personnel to effect a genuine prosecution.” The signatories of the Rome Statute did not envision a primary investigation of a Western democracy, such as Israel, whose Supreme Court has been called “the most activist judicial body of any advanced nation in the world.”
Unless the criteria for admissibility under Article 17 of the Rome Statute are satisfied, which they clearly are not here, the ICC simply has no authority to investigate or prosecute any alleged crime that can and will be investigated by Israeli authorities. To do so would be to violate its own charter and place itself above its own law.
According to the preamble of the Rome Statute, the International Criminal Court “shall be complementary to national criminal jurisdictions.” Under the principle of complementarity, the ICC has jurisdiction only if a state is either “unwilling or unable to genuinely carry out the investigation or prosecution.”
This was the original intent of the drafters of the Rome Statute. As legal scholars Michael Reisman and Mahnoush Arsanjani point out, “before and during the Rome negotiations … it was assumed that the court would become involved only in those states that were unwilling or refused to prosecute, staged a sham prosecution of their governmental cronies, or were simply unable to prosecute.”
Many signatories would not have agreed to the Rome Statute had the International Criminal Court been given jurisdiction to initiate investigations or prosecutions when the countries with primary jurisdiction were willing and able to investigate war crimes themselves.
Israel’s judicial system is among the best in the world and its Supreme Court is among the most highly regarded of any Western democracy. Its judicial system has consistently stood up for the civil liberties of its people, including minority groups. It has put soldiers and settlers on trial and even prosecuted former (and current) political leaders, including three prime ministers and one president.
Under no reasonable definition of Article 17 can Israel’s judicial system be considered “collapsing.” Since Israel is willing and able to investigate and, if necessary, prosecute any allegations of war crimes, the ICC is precluded from initiating an investigation against Israel.
Moreover, Israel is not a signatory to the Rome treaty, and neither Hamas nor the Palestinian Authority are states. But even if the ICC can overcome these hurdles (as it has claimed), it cannot overcome its own barrier to investigating alleged crimes committed by individuals who can be and are being held accountable by their own nations.
Israel is not Hamas, and the rules of the ICC are not the same for democracies that live under the rule of law and terrorist groups that live under the rule of lawlessness. This distinction is central to the legitimacy of the ICC and its rule of complementarity. Without recognizing it, the ICC would become a partisan “court” of politics rather than a neutral court of objective law.
