Should the Hague Judges grant Chief Prosecutor Karim Khan’s arrest warrants against PM Benjamin Netanyahu and DM Yoav Gallant, it could be seen as aligning the ICC with Hamas’s objectives, potentially compromising the court’s intended purpose of upholding global justice, writes UK Colonel Richard Justin Kemp CBE in Tuesday’s Telegraph.
Such a decision would establish a precedent that shields terrorist organizations while exposing democratic states to scrutiny when they attempt to defend themselves. Such an outcome could have far-reaching implications for national security, potentially causing political and military leaders to hesitate in deploying armed forces, even for legitimate defensive purposes, due to fears of legal repercussions, Kemp argues.
Colonel Kemp, 66, is a retired British Army officer who served from 1977 to 2006. Among his assignments were the command of Operation Fingal in Afghanistan from July to November 2003. He heads the UK Friends of the Association for the Wellbeing of Israel’s Soldiers.
“It looks like International Criminal Court justices will soon decide whether to issue arrest warrants against Israel’s Prime Minister and Defense Minister,” Kemp wrote, adding, “The very prospect of this is nothing short of outrageous.”
He pointed out that over the years, several ICC Chief Prosecutors have shown a particular focus on Israel. The events of October 7, involving widespread violence and hostage-taking by Hamas, provided British lawyer Karim Khan, the current Chief Prosecutor, with an opportunity to take action. However, his attention appears to be directed not at Hamas, but at Israel’s response to the murders and kidnapping.
As Kemp puts it:
To make the point that everyone is equal under the law, Khan requested arrest warrants concurrently for Hamas and Israeli leaders. That obviously would have zero effect on Hamas, already designated terrorists around the world, and with absolutely nothing to lose. A meaningless, symbolic gesture – you might think.
But it is far, far worse than that. Creating a false equivalence between arch terrorists whose currency is blood and suffering and the leaders of a democratic state defending their people from attack is nothing short of morally bankrupt. It is like indicting Osama Bin Laden and President George W Bush at the same time. Or dragging Winston Churchill into the dock at Nuremberg beside Heinrich Himmler.
Kemp argues that Khan is attempting to stretch the court’s jurisdiction in unprecedented ways to pursue his objectives. He references the High-Level Military Group (HLMG), the court’s advisory military experts, who suggest that these warrant requests may conflict with the ICC’s principle of complementarity. This principle states that the ICC should not have jurisdiction over alleged crimes committed by citizens of a country that can and will investigate and prosecute such crimes itself. Kemp points out that Israel has established civilian and military justice systems that have previously demonstrated their capability to address war crimes allegations credibly.
“Thus the Prosecutor cannot lawfully assert jurisdiction over the Prime Minister and Defense Minister without evidence that the Israeli justice system would not itself bring such charges if there was a case to answer. Khan has no such evidence because it simply doesn’t exist – either on the basis of declared future intent or past practice. It is well known that the long arm of Israeli justice has previously reached out even as far as the highest offices of state,” Col. Kemp notes.
He concludes: “When deliberating on Khan’s application, the ICC judges should ask the same question that we have asked ourselves: why does the Prosecutor seem to be singling out the Jewish State for this special treatment?”
Possibly because it is the Jewish State?
