In a public speech earlier this month, the American national-security adviser John Bolton sharply criticized the International Criminal Court (ICC) and threatened retaliation should it try to prosecute the U.S. or Israel. As Evelyn Gordon notes, multiple complaints against Israel have been submitted to the court, and its judges have twice failed to respect basic principles of impartiality with regard to those complaints. In one instance, the pre-trial chamber—tasked with determining whether charges filed by the prosecutor are sufficient to necessitate a trial—rejected the prosecutor’s own decision that Israel’s actions didn’t justify prosecution. And the court made an even more outrageous move in July:
Without waiting for [the ICC’s prosecutor Fatou] Bensouda to conclude any of her other Israel-related probes (the Palestinian Authority inundates her with complaints), the pre-trial chamber ordered the court’s registry to establish “a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine,” open an “informative page” on the court’s website exclusively for Palestinians, and report to the chamber on these operations every three months with the goal of creating a “continuous system of interaction between the Court and victims, residing within or outside of Palestine.”
Bensouda has yet to conclude that any crime even occurred, much less that the court has jurisdiction over it (which is far from self-evident). Moreover, the judges have yet to see any evidence in the cases at issue. Yet by declaring the Palestinians to be victims to whom the court must reach out, they have effectively announced that they’re already convinced both that crimes have occurred and that they’re within the court’s jurisdiction. And if the judges have decided all this without even bothering to review any evidence, how could they possibly be trusted to evaluate the evidence fairly should Bensouda actually file charges?
Moreover, by twice sending Bensouda clear signals that they want her to indict Israel, the judges have undermined her credibility as an independent prosecutor. If she ever does file such charges, will it be because she truly considers them justified or only because it’s easier to placate the judges above her than to keep defying them?
Thus the court’s track record on Israel alone provides ample justification for Bolton’s broadside against it. Indeed, it ought to concern many countries since a court that’s biased against one country can’t be trusted to eschew bias against others. . . . And by refusing to overlook that uncomfortable fact—by refusing to grant a travesty of justice the honor due the real thing—America is upholding its highest ideals.