Request for arrest warrants from ICC is ‘blood libel,’ says ex-Supreme Court justice

Former Supreme Court justice Elyakim Rubinstein has described the request for arrest warrants by International Criminal Court chief prosecutor Karim Khan against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant as “a blood libel” and illegitimate on both a substantive and procedural level.

Speaking to The Times of Israel, Rubinstein also denounced Khan’s juxtaposition of Netanyahu and Gallant with the three Hamas leaders against whom the prosecutor is also seeking arrest warrants.

Khan announced on Monday he was seeking warrants against Netanyahu and Gallant on charges of crimes against humanity, on the allegation that Israel is deliberately starving Palestinians in Gaza, as well as for war crimes of willful killing and intentionally attacking civilians.

“Requesting these arrest warrants is wrong and not appropriate in any way, not in the manner and framework in which it was done, and not in the substance [of the decision],” said Rubinstein, who served as a Supreme Court justice for 13 years, of which two were spent as deputy president.

“In terms of the manner: to juxtapose the Israeli prime minister and defense minister to the Hamas criminals is awful; there is no substantive comparison between them,” he said.

“Allegations of crimes against humanity such as starvation against Gazans simply have not happened — there is a hidden line connecting between the ICC allegations and the proceedings against Israel in the International Court of Justice on allegations of genocide, which are both blood libels,” averred the retired justice.

International Criminal Court Prosecutor Karim Khan during an interview with AFP at the Cour d’Honneur of the Palais Royal in Paris on February 7, 2024. (Dimitar DILKOFF / AFP)

In December, South Africa filed an application against Israel in the ICJ, a separate court in The Hague that hears disputes between nations, alleging that Israel is committing genocide against the Palestinians.

The court issued provisional measures against Israel in response to South Africa’s allegations, with the threshold for the court to issue such orders at the preliminary stage being extremely low. The ICJ is poised to issue further orders based on new South African requests for further measures against Jerusalem, following a hearing held in the court last week.

“There is a connection between these two proceedings on an ethical and values level, in the negative sense of those words,” asserted Rubinstein. “We can make mistakes, no one is perfect, mistakes can happen in war. But to say Israeli policy is to commit genocide, or to say that Israel’s policy is to starve Gazans is libelous.”

Asked whether the attorney general should have already been investigating the allegations being made by the ICC prosecutor, Rubinstein said he trusted that both the attorney general and the military advocate general would have dealt or would be dealing with any concrete complaints.

“You can only open an investigation when you have prima facie evidence of a crime. You don’t open investigations based merely on media reports,” he noted.

Asked whether the government should establish a state commission of inquiry or other mechanism to investigate the charges being sought by the ICC, Rubinstein would only say that he did not want to “give advice through the media on such issues.”

Such a commission, usually headed by retired Supreme Court justices, would almost certainly head off procedures in the ICC, since the court is prohibited in principle by the Rome Statute which founded it from holding proceedings against the nationals of a country which is itself holding credible investigations into the allegations in question.

But establishing a state commission would be politically difficult in Israel, since it could give the impression that there is a legitimate case to answer.