On Israel, the International Criminal Court Is Wrong on the Law—and the Facts | Opinion

On Thursday, the International Criminal Court (ICC) took the extraordinary and deeply flawed step of issuing arrest warrants for both the leaders of Hamas, a designated terrorist organization, and the leaders of Israel, a democratic state engaged in self-defense against those very same terrorists. This decision is not just morally indefensible, it was wrong on the merits, wrong on the process, wrong on the facts, and wrong on the law.

The ICC’s charges against Israel are based on alleged violations of the Rome Statute, yet they conspicuously omit the full statutory language that would clearly exonerate the accused. For instance, Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant are accused of engaging in “starvation as a method of warfare.” Article 8(2)(b)(xxv) of the Rome Statute, however, explicitly defines this crime as “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions.”

This is a specific intent crime. It is not enough to demonstrate that civilians suffered based on decisions Israel made while fighting Hamas; the prosecutor must show that Israel acted with the deliberate aim of starving civilians as a method of warfare. This is patently untrue. Israel has made extensive efforts to provide humanitarian aid to Gaza, even under the extraordinary challenge of Hamas’s systematic theft and weaponization of such supplies. Any accusation that Israel’s objective was to starve innocent civilians—rather than to compel the surrender of Hamas combatants—is not merely unfounded but a libelous distortion of the truth.

Moreover, the Geneva Conventions themselves do not require a sieging party to allow in aid when it will be commandeered by the enemy or provide a military advantage, both of which are indisputably the case with Hamas in Gaza. Similar legal and factual deficiencies undercut all the other charges leveled against Israel, which collapse under the weight of even modest scrutiny.

From a process perspective, Israel, like the United States, is not a party to the Rome Statute. The court’s claim of jurisdictional authority over disputed areas of the West Bank and Gaza hinges on the presumption that while Palestine admittedly does not constitute a “state” under the general principles of international law including the Montevideo Convention, just for the purposes of the Rome Statute the Court can treat it as a state. The idea that the definition of “state” might somehow be different here than for any other area of international law is entirely unfounded, as is the insidious and inevitable suggestion that, when it comes to prosecuting the Jewish State, as distinct from all other states, international law should be applied differently. Israel is the first and only non-member state to be investigated at the behest of a nonstate member. There is a word for that kind of special treatment, and it isn’t pretty.

Beyond the legal and procedural flaws, the factual claims underpinning the charges simply do not hold. In June, after the prosecutor had submitted his charges, the UN-backed Integrated Food Security Classification System (IPC) released an analysis showing that an earlier projection that famine “may occur” in Gaza by May had not come to pass. At the time, a spokesperson for the ICC declined to comment on whether they would let these facts in any way alter their false claims. To date there is no credible evidence that a single individual has died from starvation as a result of Israeli actions, let alone from a deliberate policy to intentionally starve civilians.

Finally, under the terms of the Rome Statute itself, the ICC is meant to be a court of last resort, intervening only when a nation is “unwilling or unable” to investigate or prosecute alleged crimes. Israel, however, has a robust legal system, staffed with expert legal advisers and an independent judiciary that has repeatedly demonstrated its commitment to upholding international humanitarian law. Dozens of active investigations into actions taken since Oct. 7 are currently underway. The ICC, by disregarding the principle of complementarity, has acted in clear violation of the court’s own rules.

Equating Israel’s legitimate acts of self-defense with the atrocities of a terrorist organization like Hamas represents a dangerous moral and legal inversion, undermining the principles of international law and emboldening bad actors who exploit these flawed rulings for propaganda purposes. The United States and all of the other countries in the free world must recognize that Israel is merely the first target in what could easily become a broader campaign by the ICC to undermine the sovereignty of democratic nations. The U.S. Senate should pass the Illegitimate Court Counteraction Act, which has already received bipartisan Congressional support, and which would impose sanctions on ICC officials who overreach their jurisdiction to target the U.S. and its allies. Far from weakening international institutions, standing with Israel against this egregious mockery of the system would be the strongest safeguard for the integrity of international law as applied, and quite possibly the only way to save the court from itself.

Mark Goldfeder is a former law professor and director of the National Jewish Advocacy Center. Follow @markgoldfeder on X.

The views expressed in this article are the writer’s own.