Interview

Irwin Cotler: ICC prosecutor weaponized international law in ‘incomprehensible’ way

Former Canadian justice minister says Karim Khan violating founding principle of ICC charter by ignoring Israeli legal independence, failing to give time for internal legal process

Former Canadian justice minister and human rights advocate Irwin Cotler, Jerusalem, 2023. (Jeremy Sharon/The Times of Israel)

Irwin Cotler, a former Canadian justice minister and attorney general, has strongly criticized the decision by International Criminal Court Prosecutor Karim Khan to seek arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, accusing Khan of double standards in his dealings with Israel, of riding roughshod over the key principle of complementarity, and of weaponizing the ICC against Israel.

In a recent in-depth interview with The Times of Israel, Cotler said he did not believe Khan’s charges — that Israel is using starvation as a weapon of war against Palestinians in Gaza and of “willful killing” of civilians during the ongoing war with Hamas — were well-founded and upbraided the prosecutor for abandoning a path of cooperation with Israel and instead embarking on a “preemptive, preclusive and prejudicial” process.

Cotler, a longtime supporter of the ICC, did, however, say that it would be a good idea for Israel at this point to establish a state commission of inquiry to examine the allegations raised by Khan to head off his pending charges.

Khan’s request last week for arrest warrants for Netanyahu and Gallant, announced at the same press conference in which he said he was seeking warrants on the same charges against three Hamas leaders, generated outrage in Jerusalem, as well as strong criticism from the US, UK, Italy and other Israel allies.

The prosecutor is seeking to level charges of crimes against humanity and war crimes against both sets of leaders.

His announcement was criticized both for the very charges against Israel, which has an independent legal system capable of investigating criminal wrongdoing by political leaders, and for seemingly creating an equivalence between Israel’s democratically elected leaders and the Hamas terrorist leadership.

International Criminal Court Prosecutor Karim Khan (center) announces that he has requested arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Hanuyeh, May 20, 2024. (Courtesy International Criminal Court)

“I think the application for arrest warrants against Israeli leaders and the Hamas leaders is a false moral and legal equivalence, and as US President Joe Biden has said, this comparison is outrageous,” said Cotler.

The former minister has a long history backing the court, serving as special adviser to the Canadian foreign minister on the International Criminal Court in the late 1990s before the ICC was established. He was also present in Rome as head of a Canadian delegation of non-governmental organizations when the Rome Statute, the ICC’s founding charter, was adopted in 1998.

Cotler also co-sponsored the War Crimes and Crimes Against Humanity Act as a member of the Canadian parliament, which grounded the provisions of the Rome Statute in Canadian legislation and passed into law in 2000.

Cotler met with Khan shortly before he requested the warrants, and said that he had “known him to be a person of integrity and principle,” which, he continued, was why he was “so surprised by his conduct” in handling the case.

Uncomplementary

One of Cotler’s key criticisms is that Khan appears to have paid scant regard to a foundational principle of the ICC — that it is a court of last resort, meaning that a state with an independent judiciary that is willing and able to hold senior officials to account for crimes under the ICC’s jurisdiction must be given the opportunity to exercise that authority.

Article 17 of the Rome Statute, the ICC’s founding charter, states that a case is admissible to the court if the state under suspicion “is unwilling or unable genuinely to carry out the investigation or prosecution.”

The article continues to say that unwillingness means, among other things, that “there has been an unjustified delay in the proceedings.”

But Khan opened his investigation less than six months ago and has already sought arrest warrants, quicker than in almost any other major case, including allegations against Sudanese leaders for the genocide in Darfur in the early 2000s, which took three years to produce arrest warrant requests. It took a year for the arrest warrants against Putin for war crimes in Ukraine to be requested in 2023.

Israel’s Attorney General Gali Baharav-Miara herself has strongly criticized Khan, accusing him of ignoring Israeli judicial independence and the legal review of potential criminal misconduct currently underway, ignoring the review of petitions against the government’s humanitarian aid policy currently before the High Court of Justice, and failing to give the Israeli legal system sufficient time and opportunity to complete these processes.

Attorney General Gali Baharav-Miara addresses the Israel Bar Association’s annual conference in Eilat, May 27, 2024. (Courtesy Israel Bar Association)

“The ICC should not substitute its judgment in a state which is able to investigate itself; otherwise it breaches the founding principles of the court,” said Cotler, noting that this is the first time ever that the ICC has sought arrest warrants against a democratic country with an independent judiciary.

Uncooperative

This complaint is thrown into sharper relief by the fact that according to the government and Cotler, Israeli officials were preparing to host ICC officials on the very day Khan announced his request for arrest warrants in order to plan an official visit by the prosecutor himself.

“The Israeli government was prepared to cooperate with Karim Khan. He was scheduled to come to Israel and meet with the authorities. His team was supposed to come to Israel to coordinate his own visit, but he issued his request [for arrest warrants] on that very day,” said Cotler.

During Khan’s visit, he would have met with Israeli officials to better understand the judicial and legal oversight over the conduct of the war against Hamas, including Israeli policy on humanitarian aid to Gaza, a key issue behind his allegations that Israel is intentionally starving Gazans.

The Rome Statute explicitly empowers the ICC prosecutor to enter into “arrangements or agreements… to facilitate the cooperation of a State,” but having seemingly begun preparations to adopt such an approach with Israel, Khan then apparently backed out.

Moreover, Cotler pointed out, the prosecutor has himself recently embarked on such a cooperative path with Venezuela.

In December 2020, then-ICC prosecutor Fatou Bensouda concluded that there was a reasonable basis to believe that the dictatorial regime of Nicholas Maduro in Venezuela had committed crimes against humanity, including arbitrary detention, torture, rape and other forms of sexual violence, and persecution against its own citizens.

But in April this year, Khan announced that after his fourth visit to Venezuela, he had come to an agreement for an ICC “technical team” to return to Caracas to form a cooperative framework for “positive complementarity initiatives” to address the severe crimes against humanity allegations made against Maduro’s regime.

“We will spare no effort, where there is genuine will from Venezuela, to find ways in which we can deepen our cooperation with national authorities in order to strengthen domestic accountability initiatives,” Khan declared after his visit, though he added that the ICC investigation was ongoing.

International Criminal Court Prosecutor Karim Khan (left) shakes hands with Venezuelan dictator Nicolas Maduro during a visit of Khans to Caracas from April 22 to 24, 2024. (Courtesy International Criminal Court)

Venezuela ranks dead last for judicial independence, 142 out of 142 countries, in the 2023 World Justice Project’s (WJP) Rule of Law Index.

It is also ranked 142 out of 167 in the Economist’s 2023 Democracy Index.

By way of comparison, Israel is placed at 30 in the Economist’s index, one place below the US and above numerous European countries including Italy, Portugal and Belgium. It is not reviewed in the WJP index.

“Venezuela is an authoritarian, dictatorial regime. A culture of criminality and impunity continues in there, yet Karim Khan went there under the principle of cooperation and determined that, in fact, he could cooperate with Maduro, so no arrest warrants have been issued,” said Cotler.

“In Israel, a democracy with an independent press and judiciary, nongovernmental organizations operating freely, and free and fair elections — here he makes a decision to seek arrest warrants,” he said.

“I find this asymmetry and false moral equivalence [with the Hamas leaders] incomprehensible,” he continued. “The very issuance of arrest warrants criminalizes Israel and singles its leaders out for opprobrium and indictment in the international arena.

“This all undermines the ICC as a court of last resort and as a court of limited jurisdiction,” said Cotler. “Because the ICC, which I have been a longtime supporter of and remain a supporter of, is being prejudiced in this way, it ends up regrettably prejudicing not only the international justice system in singling out the Israeli leadership, but also contributes to the overall weaponization of international law and international institutions.”

The International Criminal Court (ICC) in The Hague (Oliver de la Haye / iStock)

Cotler insisted that he was not prejudging whether Israel had or had not been responsible for violations of international law, insisting that Israel “must respect human rights,” but asserted that Khan’s request for arrest warrants meant Israel was “not being afforded equality before the law.”

Preemptive, preclusive and prejudicial

One proposal that has been made in the days since Khan’s announcement has been for Israel to establish a state commission of inquiry into its own conduct of the war. This proposal has been made by, among others, former attorney general Avichai Mandelblit and National Unity leader Benny Gantz, a member of the war cabinet.

Cotler said that it would be “helpful” for Israel to establish such a commission since it would “bring about the broadest possible exposure” to the fact that the country has an independent judiciary willing and capable of investigating its leaders.

Such a commission would also seemingly preclude the ICC investigation and potential arrest warrants, since Article 17 of the Rome Statute states explicitly that a case is inadmissible to the court if it is “being investigated or prosecuted” by the country in question.

Cotler insisted that even without such a commission, Khan’s request for arrest warrants was still a violation of complementarity, but said that it might help the prosecutor to “climb down from the ladder he has climbed” and open the way for the ICC procedures to be frozen.

“I find it surprising that in the case of Israel, even if he had concerns, that was all the more reason for Karim Khan to come to Israel under the principle of cooperation and to explore the principle of complementarity and receive information from Israel that he said had not been forthcoming,” he said.

“Seeking arrest warrants is therefore preemptive, preclusive because it shuts the door on the cooperative path, and prejudicial because of the false moral equivalence it has created between Israel and Hamas, because of how it has undermined negotiations between Israel and the court, because of the asymmetry with the Venezuela case, and because of how it has weaponized international law against Israel.”

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