By David Abrams
Is the International Criminal Court itself violating international law? Should the International Criminal Court be designated by the State Department as a terrorist organization? On its face, these appear to be radical and bold propositions, but in recent years, the ICC has crossed a significant line: the ICC is attempting to seize jurisdiction over all nations, not just those states that have subscribed to the ICC Treaty. As set forth below, this self-aggrandizing behavior is more than the mission creep so typical of international organization. Rather, it is an attack on basic principles of sovereignty and a violation of international law and by extension the laws of the United States.
By way of background, most pro-Israel attorneys are familiar with the recent controversy surrounding the International Criminal Court. The ICC was created 20 years ago with the goal of setting up a permanent tribunal for the prosecution of serious crimes against humanity. Although Israel was involved with the ICC from the beginning, Israel declined to subscribe to the ICC treaty when it became clear that there was a serious risk that the ICC would be used as a tool to harass and delegitimize Israel as a state.
Twenty years later, those fears have come to fruition, with the ICC prosecutor Fatou Bensouda seeking to establish jurisdiction over Israel for legitimate acts of self-defense, even though Israel has its own rigorous internal system for prosecuting war crimes and even though Israel never actually joined the ICC Treaty
The first principle of international law in play holds that outside limited circumstances, states cannot kidnap foreign nationals for purposes of prosecution without the consent of the foreign state. Thus, the United Nations Human Rights Committee has held that „forcible abduction of an individual from one state to another for the purposes of his rendition to face a criminal trial … violates the International Covenant on Civil and Political Rights“ (1). Moreover, to the extent that the ICC itself is a non-state actor, states are obliged to prevent it from engaging in such behavior (2). Therefore, it would be a violation of international law for the ICC to issue warrants for the arrest of Israeli officials without the permission of the government of Israel. Simply put, such warrants would be an attack on the fundamental principle of sovereignty of states.
Similarly, the 1973 U.N. anti-terrorism convention prohibits any „attack“ on the „person, freedom or dignity“ of a head of state or other authorized representative of a state (3). It also prohibits threats and attempts to engage in such behavior (4). Thus, for example, if the International Criminal Court were to issue an arrest warrant for Bibi Netanyahu, it would be a clear violation of international laws against terrorism.
It should be emphasized that these protections can be waived. Thus, when Israeli agents famously kidnapped the Nazi war criminal Adolf Eichmann from his home in Argentina, the abduction was ratified by the Argentine government. More recently, numerous states have subscribed to the ICC treaty. Accordingly, there is no inherent problem with the ICC attempting to assert jurisdiction over the nationals of such states who have voluntarily submitted themselves to ICC jurisdiction.
Significantly and by contrast, numerous states — including Israel and the United States — have not subscribed to the ICC treaty. It is for this reason that it would be a violation of accepted international law for the ICC to attempt to prosecute American or Israeli officials.
Since international law is not self-enforcing, the next question is what can or should be done regarding the ICC’s unlawful attempt at jurisdiction-seizing.
First, the United States has already passed the so-called Hague Invasion Act, which authorizes the military to take the necessary steps to protect Americans (and our allies) from ICC overreaching (5). The United States should consider amending this law to make clear that any such arrests will be treated as criminal kidnapping and that victims of ICC misbehavior will have a private right of action in American courts.
Second, the United States government should consider designating the ICC as a terrorist organization. Such a designation would be well within the scope of existing law, since American anti-terrorism laws already incorporate the U.N. Conventions by reference (6). Moreover, such a designation would discourage NGOs and other organizations from providing financial or other support to the ICC and might cripple the ICC financially.
Ultimately, the goal should be to deny legitimacy to the ICC’s attempt at overreaching. A clear message should be sent to the ICC that it will not achieve the respect it seeks by overstepping its bounds.
(1) Abraham Mohit , The Customary Law of International Abductions: Limits and Boundaries, 11 Asian Yearbook of Int’l Law 123, 132-133 (2006).
(2) Vladyslav Lanovoy, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct, 28 Eur. J. Int’l Law 563, 565 (2017).
(3) United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, New York December 14, 1973, Art. 2(1)(a).
(4) Id. 1(c); 1(d).
(5) See 22 USC 7401 et seq.
(6) See 18 USC 2339C(a)(1)(A).