My father’s thoughts on the decision by the International Criminal Court to issue arrest warrants for Israel’s Prime Minister and its ex Minister of Defence

It’s been a hell of a year.

I’ve never been more lucky: the addition of my 5 month old Ami to Elina and my family has added more meaning and been more positive than I could have imagined. I am so grateful for a broader family and community that are safe, healthy and full of love.

Yet as a Jew with Ukrainian roots, I appreciate how hard it’s been for many others. I’ll write more about the impact of my baby Ami on me and, seperately, on my 2025 work priorities, in subsequent posts, but for now I wanted to re-post my father’s thoughts on the decision by the Prosecutor of the International Criminal Court to issue arrest warrants for Israel’s Prime Minister, its ex Minister of Defence and the Hamas militant, Mohammed Deif.

I have personal reasons for weighing in on this particular aspect of the current Palestine-Israel conflict:

• my mother is the daughter of Holocaust survivors. The ICC was in part created as a result of the Holocaust, as my father, who was involved in the creation of the Court, explains in more detail

• I was brought to tears in undergrad by stories of massacres in Rwanda and Sudan. This motivated my leading McGill’s clinics for the Special Court of Sierra Leone and several other tribunals and eventually interning on defence teams at the international criminal tribunals for Cambodia and the former Yugoslavia

• I was an international clerk at the Supreme Court of Israel in the summer of 2010, when my father was Canada’s Ambassador to Israel. I am a proud Jew and I am devastated by the state of Israel’s politics and the actions of its military and current leadership

Yet my expertise in this area has diminished since I left law over a decade ago. As such, I’ll leave it to my dad, who’s views I share, to convey his thoughts on the ICC arrest warrants:

The International Criminal Court Warrants Issued for the Arrest of Benjamin Netanyahu and Yoav Gallant: Is the Criticism of the Court Justified?

by Jon Allen

Before discussing the particular cases of the International Criminal Court (ICC) indictments against Bibi Netanyahu and Yoav Gallant, the current Prime Minister of Israel and the former Defense Minister, respectively, and of Mohammad Deif, the Hamas militant leader (who may be dead) , I wanted to preface my remarks by noting that I take no pleasure in arguing that the Court may be justified in moving to prosecute an Israeli Prime Minister and its former Minister of Defence. Indeed, it is a very sad time, in my view, and a sad statement about where the current Israeli coalition government has taken the country.

I also want to talk briefly about why I consider the Court and its objectives to be so important. For me, the ICC, why it was established and what it stands for have both personal and professional resonance.

The idea of such a Court came into being following WWII and, more specifically, the Holocaust as did many of the provisions of the Geneva Conventions that are intended to govern the conduct of military and political leaders and combatants and the treatment of civilians, prisoners and combatants in war time.

In part, those laws and the Court were meant to address, deter and punish the worst of crimes, many of which are now prohibited under customary international law, i.e., they don’t require a treaty to bind states and individuals. Although not naïve about what they hoped they could achieve, the founders believed in the words “never again” and those words didn’t mean and shouldn’t mean just never again to the Jews but rather never again to all mankind.

I studied international law including courses in international human rights. I then practiced international human right’s law at Canada’s then Department of Foreign Affairs. They were difficult times when the world witnessed the genocide in Rwanda, the atrocities in the Balkans, in Sierra Leone and other brutal conflicts.

I headed our first delegation to the negotiations of the Statute of the ICC when the Americans were amongst the Court’s strongest supporters. They only dropped that support when it became clear that other states were not going to allow the UN Security Council to prevent a prosecution going forward. In other words, as long as American leaders and soldiers believed that they wouldn’t be open to the possibility of a prosecution by the Court, they were happy to support the treaty.

I’ll come back to the US’ inconsistent position on the court.

So, let’s discuss the charges against Prime Minister Netanyahu, Yoav Gallant and Mohammad Deif.

With respect to the Prime Minister and Gallant, the Chamber of the ICC found that there are reasonable grounds to believe that each has committed the war crime of using starvation as a method of warfare and crimes against humanity of murder, persecution, and other inhumane acts. The Chamber also found reasonable grounds to believe that they are each responsible for the war crime of intentionally directing attacks against civilians. Finally, the Chamber issued a warrant of arrest for Mohammad Dief for the alleged crimes against humanity of murder, extermination, torture, and rape and other forms of sexual violence and for various war crimes.

First, I’d like to address the charges of moral equivalence that some, including American, British and Canadian ministers initially argued. In examining the actions of individuals directing a war, the court does not measure which party committed the more serious war crime and then choose the worst to prosecute. Individuals’ actions are rather measured against the principles of international humanitarian law (IHL). In this case both the Hamas militants and Bibi and Gallant are alleged to have breached IHL. Why did the prosecutor announce both sets of applications for arrest at the same time? Not because a two-week siege is equivalent to the murder of innocent women and children but because both are breaches of IHL and because if the Prosecutor had announced either application first and separately, he would have been condemned for ignoring possible charges and warrants against the other side.

Second, Israel had and has options to avoid these charges. First, they didn’t have to impose a two-week siege on the Gaza Strip immediately following the October 7 attacks by Hamas and then for over a year refuse to provide sufficient humanitarian assistance to 2.2 million Gazans. In this regard, I reject completely the suggestions by some that more than enough food and other assistance has entered the strip. The US wasn’t on the verge of sanctioning Israel months ago because sufficient food, water and medicines have been flowing into Gaza. Indeed, the US and many aid agencies currently operating in the Gaza Strip confirmed that Israel had met none of the US’ humanitarian assistance benchmarks after the 30 day deadline it had imposed. The US and countries like Canada, the UK and Germany are still demanding that more be done. The US didn’t build a failed pier at the cost of some $350 million because enough food was getting to innocent Palestinian men, women and children. Jordan and others were not air dropping food, water and medicines because enough assistance was getting in. And the NGOs and international organizations on the ground in Gaza today are not lying when they describe surgeries without anesthetics, disease from unsafe water, and malnutrition among children.

Yes, some shipments are being hijacked by criminal gangs and Hamas. But that’s in part because there is currently no rule of law in Gaza. Israel has forced the disbanding of the Gazan police. As both the occupying power and the military force on the ground, it has specific obligations to allow the assistance in and then to ensure it reaches the population. Simply allowing an insufficient number of trucks into Gaza and then abandoning them as they enter the territory is not compliance with IHL.

Third, had Israel followed the US’ advice based on their failed experiences in Iraq and Afghanistan and engaged in more targeted killings of Hamas leaders rather dropping 2000-pound bombs and more in a dense urban area, Israel might have avoided the accusation of crimes against humanity for indiscriminate killing. In addition, but unrelated to the ICC warrants, a far less blunt Israeli approach might also have avoided radicalizing the young Palestinian population in both Gaza and the West Bank that has survived.

Yes, Israel absolutely had and has the right to self defence. No one should deny it. Moreover, we are all aware of how difficult it is to fight in the narrow urban confines of Gaza. We have seen the tunnels and know that the hostages have been hidden deep in them.

We are also aware that some of those tunnels are built under hospitals, schools and universities. But these realities may not justify killing thirty or forty or fifty innocent Gazans per day for eleven months in order to eliminate one or two or three Hamas militants. Among the questions the Court will have to decide if a trial ever takes place is whether Israel fought a just war unjustly.

I have not seen the evidence for these alleged crimes. It has not been made public. But given the massive death toll (upward of 45,00 of which some 2/3 could be innocent women children and men), the over 100,000 injured, the widespread destruction (60-70% of Gaza in rubble including hospitals, schools, universities and apartment buildings) and the continuing daily deaths reported (97 one day, 26 the next, 40 the next) all of which are justified by the alleged presence of Hamas militants hiding beneath the buildings being bombed and fired upon, it doesn’t surprise me that allegations of disproportionate killings have been made.

I am aware that there are some who argue the opposite, that the number of militants killed as a proportion of the total deaths is comparable to or better than in other recent conflicts. In the end, the ICC or an Israeli state commission of inquiry, if one is ultimately established, may have to decide.

Fourth, the ICC operates under the principle of complementarity which provides that if a state is willing and able to investigate and prosecute the alleged crimes it can do so instead of the court.

This is what the ICC prosecutor had to say on this issue when he announced the warrants:

“In line with the Rome Statute, the door to complementarity continues to remain open. As with all situations, we will continue to actively assess the application of this fundamental principle, which requires genuine domestic investigations and any necessary prosecution of the same individuals for substantially the same conduct.”

To date, Israel has refused to do just that, as it has refused, despite much Israeli precedent, to establish a state commission of inquiry to investigate what happened on Oct. 7 and thereafter. The fact that the current government has attempted to severely weaken and politicize the Israeli Supreme Court, the police and the office of the Attorney General, frequently threatening to fire the latter, likely did not help its case. Ironically, Gallant himself warned Bibi Netanyahu before October 7 that the attempted judicial coup, by destroying the independence of the court, could expose Israeli military officers to prosecution by the Court.

Equally important to note is the fact that both Gallant and his Chief of Staff stated publicly months ago that Israel had achieved its military objectives in Gaza and that the so-called “total victory” that was demanded by the Prime Minister, was impossible. So, if Israel’s military objectives have largely been achieved, how does it justify the continued daily killings of innocent civilians. Indeed, those deaths are almost by definition disproportionate to the IDF’s war aims.

Michael Koplow of the Israel Policy Forum, an organization for which I have much respect, has argued recently that because the Prime Minister and Yoav Gallant likely never will appear before the Court, that such a prosecution exposes the Court’s impotence. That’s quite a proposition. If we take this argument to its logical conclusion, international tribunals should pursue only those international criminals whom the prosecutor is sure he can bring before the Court. Otherwise, he’ll discredit himself and the tribunal. Frankly neither international law nor international humanitarian law would exist if enforceability was the criterion. Do countries and individuals breach international law and sometimes evade condemnation or prosecution. Yes, probably more often than not. Will Vladimir Putin end up in the Hague. Not as long as he’s Russia’s Czar. But Slobodan Milosevic never imagined that he would end up before an international criminal tribunal. Nor did the accused at Nuremberg and nor did those prosecuted in tribunals for crimes committed in Sierra Leone or Cambodia. Moreover, Putin has now been forced to avoid both a BRICS meeting in South Africa and the G-20 Summit in Brazil. What will happen after he steps down, if he ever does, is not clear. I imagine that Prime Minister Netanyahu will also avoid visiting those countries that are Party to the ICC Statute and which have indicated a willingness to abide by its provisions.

Moreover, regarding Putin’s indictment, the U.S. government that criticized the Court and the warrants in question as “outrageous”, praised the same Court when Putin’s arrest warrant was issued. The President ordered US intelligence agencies to provide the Court with all available evidence to support the prosecutor’s case. It seems, therefore, that trust and confidence in the objectivity of an institution and its prosecutor is inconsistently proffered depending on whether the defendant is friend or foe.

But returning to Michael Koplow’s argument, even if only a few international criminals are convicted and serve their sentences, that is no reason to abandon international humanitarian law or the ICC. How may violations have they prevented because of the possible consequences. How many prisoners have avoided being tortured because of humanitarian and human rights law? How many soldiers’ lives have been saved because chemical weapons are prohibited? How many citizens are alive because of the laws prohibiting disproportionate killings? Not enough, I would argue, but hopefully enough to ensure that humanitarian law is supported by all states that believe in human rights and the rule of law.

Another point raised by Koplow needs to be challenged. He questions whether a democratically elected leader should be issued a warrant. International law decisions aren’t based - nor should they be - on whether the person charged is freely elected. Adolf Hitler was democratically elected. So was Milosevic. Augusto Pinochet was democratically elected years after his coup d’état and the tens of thousands of murders for which he was responsible. Should being elected shield anyone if they subsequently commit war crimes or crimes against humanity? I think not.

Finally, Koplow suggests that the warrants for the Prime Minister et al will sour Israel’s and Israeli’s relationship with the UN. This is the same country that declared the UN Secretary General persona non grata months ago and that declared UNRWA a terrorist organization. It is the same country that allegedly fired on and killed UNIFIL Observers in Lebanon both in the 2006 war, including a Canadian soldier, and in the most recent war.

I’m not sure Michael Koplow was listening as the Israeli Ambassador at the UN disparaged the organization labelling it anti-Israel and anti-Semitic, or the way Benjamin Netanyahu did the same when he recently spoke before the UN General Assembly and before the U.S. Congress. Arrest warrants for Netanyahu and Gallant certainly won’t help that relationship but I doubt there is much left to resuscitate as long as the current coalition is in power. Frankly I highly doubt that Israel would ever allow a UN force to engage in the reconstruction and in re-establishing the rule of law in Gaza that Koplow suggests could happen if such a prosecution was not in process. I agree that there will have to be a coalition of forces, perhaps supported by a UN Security Council mandate to assist in rebuilding Gaza in all its aspects, but not a UN force.

Then we have Canada’s former Finance Minister, Joe Oliver, in the National Post claiming that the Prosecutor’s charges are false and are a biased prosecution of the Jewish state. He claims that the ICC warrants are similar to the prosecution in the Dreyfus case.

The Dreyfus case was based on outright lies. Here, six prominent international jurists, including Ted Meron, a former Israeli Ministry of Foreign Affairs Legal Adviser, reviewed the arrest warrants before they were issued and agreed with the Prosecutor that there was sufficient evidence to justify sending them to the Tribunal. Three independent judges led by an experienced French jurist, also agreed that there were reasonable grounds to believe that the crimes have been committed. If they ever end up in the Hague or if Israel ever chooses to prosecute them, the Prime Minister and Gallant may well be able to disprove the allegations. But this not the Dreyfus case revisited.

Oliver also asks why Bashar al Assad was not prosecuted. This is classic “what aboutism”, i.e., we should ignore the siege, other possible war crimes, Israel’s illegal settlements and the occupation because Syria, Russia, Iran and China have done and are doing worse.

Unfortunately, Assad was not prosecuted because a) Syria is not party to the ICC statute; and b) because he committed those horrific crimes on his own citizens within his own territory. The Court does not have jurisdiction in such cases. If the Court had tried to go after him, critics would, as some are now doing in this case, be arguing judicial overreach. Assad is now, of course, seeking protection in Russia from his erstwhile ally, Vladimir Putin.

Finally on the question of the court’s jurisdiction, i.e., whether Palestine is properly a State within the Court’s definition, that is an issue that was discussed and decided some years ago. Israel knew very well that Palestine was a party to the ICC Statute when it responded to Hamas’ attacks on October 8 and following. Notwithstanding that, Netanyahu and Gallant have the right to argue both this jurisdictional issue and the view that they did not receive timely notification of the charges if and when they appear before the Court.

To note on the question of Palestine’s status more generally, at least 146 states have recognized Palestine as a state. As Canada’s Legal Adviser recently testified before a House of Commons Committee examining Canada’s possible recognition of Palestine, while there are internationally recognized criteria for state recognition, the ultimate decision by one state to recognize another is purely political. As of 2012, Palestine became a Permanent Observer State at the UN. Full membership can only be attained when approved by the UN Security Council and the UN General Assembly.

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My father also recently testified to the House of Commons standing committee on foreign affairs that Canada should recognize a Palestinian state now.