Judges and legal experts who advised on the International Criminal Court on the Netanyahu arrest warrant have a history of publicly criticising Israel, the JC can reveal.
One judge who worked on case with Chief Prosecutor Karim Khan, Iulia Motoc – who pulled out of the investigation just a few weeks ago, citing health grounds – liked a post in December last year saying Israel’s war against Hamas was “a stain on humanity”.
Kevin Jon Heller, a Jewish law professor who also advised Khan, has been posting strong criticism of Benjamin Netanyahu for a decade.
In 2015, for example, Heller wrote that Netanyahu was “a war criminal” and in 2020 he wrote: “Pretty sure Trump, Netanyahu, Friedman, and Kushner couldn’t care less about what international law says.”
A third adviser on the Netanyahu case, British peer Baroness Helen Kennedy, is the president of Medical Aid for Palestinians and a longstanding critic of Israel’s policies towards the Palestinians.
In a 2020 article for website Middle East Eye about Israel “intentionally” targeting Palestinian doctors, she wrote: “New research … shows that the protected status of hospitals and medical personnel under international law is not being upheld.” However, she did not mention that Hamas had been repeatedly accused of using hospitals and ambulances for its terrorist activities.
Jonathan Turner from campaign group UK Lawyers for Israel said it was not surprising there were allegations of bias within the ICC in light of its own analysis of the recent ruling. “We have analysed the prosecutor’s summary and found every phrase in every sentence is false,” he said.
Arsen Ostrovsky, human rights lawyer and CEO of the International Legal Forum, which was one of the groups that made submissions appealing the Prosecutor’s request for warrants, said: “Regrettably, from the judges who issued the arrest warrants, to Prosecutor Khan who sought them and the Special Advisers who counselled him, the ICC has violated every conceivable foundational principle of the court, not least that of complementary, in issuing these mendacious and baseless warrants.
“They have essentially sacrificed the Rule of Law and all semblance of impartiality and objectivity at the altar for the pursuit of a political agenda against the State of Israel, that will do nothing but reward the murderers and rapists of Hamas, and undermine the very international legal order upon which the pursuit of justice is based.”
The ICC has several rules regarding impartiality. Staff regulation (Regulation 1.1b) stipulates that ICC workers should perform their duties, “honourably, faithfully, impartially and conscientiously”, and the Rome Statute (the ICC’s constitutional document) declares in article 44 (2), “in the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity”.
The ICC code of conduct also requires them to “refrain from any activity which is likely to negatively affect the confidence of others in the independence or integrity of the Office”.
A spokesperson for the office of the prosecutor refused to comment on any allegations of impartiality, but said: “In his statement of 20 May 2024, ICC Prosecutor Karim AA Khan KC noted that he convened a panel of experts in international law to support the evidence review and legal analysis in relation to the applications for warrants of arrest in the situation in the State of Palestine. As publicly noted by the Prosecutor, the panel made a valuable and significant contribution to the evidence review process, supporting and strengthening the applications filed by the Office in this situation.”
“The Panel Members and academic advisers that supported the panel were selected because of their expertise in public international law, international human rights law, international humanitarian law and international criminal law and, in the case of two of them, experience as former judges of international criminal tribunals. Two of the members of the panel are Special Advisers to the Prosecutor. Their work was undertaken on a pro bono (unpaid) basis.
“The Office regularly draws on the input and advice of independent experts as part of its investigations, including at the stage of evidence review prior to the submissions of applications for arrest warrants. Special Advisers to the Prosecutor also provide input and guidance with respect to the work of the Office across situations. This incorporation of additional and independent perspectives is sought by the Office in its work across situations so as to support the conduct of effective investigations and prosecutions and to ensure the submission of robust applications to the Pre-Trial Chamber. The Prosecutor convening the panel of experts continued this established modality. The report of the panel was not submitted to the judges as part of the applications for warrants of arrest in the situation in the State of Palestine.”
Heller, Motoc and Kennedy were approached for comment.