By Eli Kenin, an independent writer, researcher and translator based in Jerusalem
The Court performs legal acrobatics to charge Israeli leaders while being derelict in its duty to bring Venezuela’s dictator to justice
The International Criminal Court’s logo displays a scale nestled between two olive branches symbolizing the balance between justice and peace. Each year, on July 17th, the ICC celebrates the signing of The Rome Statue in 1998, the international treaty that established it, with themes such “building a more just world” and “a world without impunity.” Yet, twenty-two years after the court began to function in 2002, Karim Khan, the current chief prosecutor, has issued an arrest warrant for Israel’s democratically elected Prime Minster Benyamin Netanyahu while offering near impunity to Venezuelan dictator Nicolás Maduro.
Meanwhile, Khan, an English barrister of Pakistani descent, is accused of the sexual harassment of an employee, while his sister-in-law represents Maduro before the very court that he heads, a clear violation of the ICC’s Code of Conduct for the Office of the Prosecutor.
The International Court of Justice describes itself as “the world’s first permanent international criminal court.” The ICC is an independent judicial body distinct from the United Nations, although the Rome Statute, which is the basis of its creation, was negotiated within the UN.
The Court’s power to prosecute is limited by two provisions in the Rome Statute: voluntary adherence to the treaty as a ‘State Party’ and ‘complementarity,’ which means that national courts must be incapable of prosecuting an individual before the ICC can step in.
Comparing the ICC’s intervention in Israel and Venezuela
Nicolás Maduro Moros has been president of Venezuela since 2013, having taken over following the death of strongman Hugo Chavez. He has retained power since then through a series of disputed elections, the latest of which took place on July 28th this year. This time, there is irrefutable evidence that the election was stolen. Caught off guard, Maduro stepped up repression, which has been documented since 2014, with the aid of his Cuban and Russian allies. Over 7.7 million Venezuelans (20% of the population) have fled since 2014, one of the largest displacement crises in the world.
In 2021, the International Criminal Court opened formal investigations into war crimes and crimes against humanity in the Palestinian territories (March 3, 2021) as well as crimes against humanity in Venezuela (November 3, 2021).
Although the ICC considers the gravity of crimes, it does not prioritize cases based on whether they occur during interstate conflicts, civil wars, or state repression. Venezuela exemplifies the latter, while the Israel/Palestine conflict is classified as both an international (IAC) and a non-international (NIAC) armed conflict, underscoring its legal complexity.
It may appear incongruous to contrast cases that are inherently different. However, given the legal maneuvering required to charge Israeli leaders compared to the simplicity of the Venezuelan case, the International Criminal Court should have already issued arrest warrants for Nicolás Maduro and his collaborators.
In effect, Venezuela represents a classic case for which the International Court of Justice was created: A State Signatory to the Rome Statue with recognized international borders in which specific individuals in governmental positions have allegedly abused its citizens’ human rights and undermined the national court system, leaving them without legal recourse. In addition, the case of Venezuela was referred to the Court by multiple sovereign states, all full members of the United Nations, and signatories of the Rome Statue.
Israel is not a signatory of the Rome Statue. However, the International Court of Justice considers that a crime committed on the territory of a Member State gives it jurisdiction to prosecute the offending nation. Since “the State of Palestine” is a signatory to the Statue, the Court ruled that it can prosecute Israel’s democratically elected leaders. To do this, required a further ruling that the territory of Palestine extends to “Gaza and the West Bank, including East Jerusalem,” a decision that the presiding judge on a panel of three that approved it called [legal] acrobatics. The referring state was “the State of Palestine,” whose status as a sovereign state is not recognized by the UN and its judicial organ, the International Court of Justice.
Although there have been jurisdictional issues in other cases such as Russia/Ukraine and Myanmar/Bangladesh, the International Criminal Court has stretched its definitions of both jurisdiction and national sovereignty even further to extend its authority over Israel.
The ICC’s slow investigation of Maduro’s human rights violations
In August 2017, the UN High Commissioner for Human Rights released a detailed report on repression in Venezuela, documenting extrajudicial killings, torture (including beatings, electric shocks, suffocation, and threats of sexual violence), arbitrary detentions, enforced disappearances, and political repression, with women and children among the victims. These findings have been consistently echoed in subsequent investigations into Venezuela’s human rights abuses.
In September 2018, the ICC received a referral from Canada and five Latin American countries requesting an investigation into human rights violations in Venezuela since February 2014.
At the end of 2020, the Organization of American States reported 18,000 murders,15,000 arbitrary arrests, and 650 torture cases since 2014 in what it termed the worst humanitarian crisis in history of the continent. Its scathing 145-page report, Fostering Impunity: the impact of the failure of the prosecutor of the International Criminal Court to open an investigation into crimes against humanity in Venezuela, claimed that the lack of action “emboldens Maduro into committing more crimes, engineering fraudulent votes.”
The ICC’s chief prosecutor, Karim Khan, finally concluded in December 2020 that there was “a reasonable basis to believe these crimes occurred,” but only opened a formal investigation at the end of 2021, almost a year later.
In April 2022, almost six months after opening the formal investigation, the Court accepted Venezuela’s request to investigate itself under Article 18(2) of the Rome Statute that confirms the ICC’s status as a court of last resort, giving precedence to national prosecutions. The Court did not resume its investigation until March 2024 after rejecting Venezuela’s appeal that its justice system could manage the investigation independently.
Urgent Calls for Action Following the July 28th elections
On August 8th, Amnesty International called Prosecutor Karim Khan’s silence on the Venezuelan crisis “alarming.” On September 7th, 31 former Spanish and Latin American leaders urged the ICC to issue an arrest warrant for President Nicolás Maduro and his associates for crimes against humanity and state terrorism.
Facing international pressure, on December 2nd, Khan called for the release of minors detained in Venezuela following the election and warned that “the principle of complementarity and cooperation is running out.” The Chief Prosecutor has been using this pillar of the Rome Statue to mollycoddle Venezuela’s authoritarian leader for years.
The Chief Prosecutor’s faith in Venezuela’s courts is astounding considering that Human Rights Watch reported that “The [Venezuelan] judiciary stopped functioning as an independent branch of government in 2004,” and that “judicial authorities have been complicit in abuses.”
The “State of Palestine” and the International Criminal Court
In November 2012, the UN General Assembly granted Palestinians “non-member observer state” status. The decision did not confirm Palestine as a sovereign nation but allowed it to request membership in international organizations such as the International Criminal Court.
According to an ICC statement, “On January 1, 2015, the Government of ‘The State of Palestine’ accepted “the jurisdiction of the International Criminal Court over alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”
While the use of the word “State” can be justified as ICC legal terminology applied to all signatories, for Israelis it implies the recognition of Palestine as sovereign nation.
On January 16, 2015, then ICC Chief Prosecutor Fatou Bensouda, a Gambian national, began a preliminary examination into “the Situation in Palestine,” which concluded in December of 2019.
While investigation of Venezuela was based on a referral by six State Members, the referral to open an investigation against Israel was an 18-page document signed by Palestinian Authority Foreign Minister Riyad al-Maliki complaining that the ICC’s preliminary examination had not only failed to “to punish, let alone investigate, crimes associated with the unlawful occupation of Palestine, but had “only emboldened perpetrators to carry on with their criminal deeds.” It was submitted in the name of “the State of Palestine.”
Thus, based on a declaration by an autonomous entity, the Palestinian Authority, which is not recognized as a sovereign state by the UN, the International Criminal Court prepared an investigation into a non-signatory state, Israel. On February 5, 2021, over a year later, the court would rule on the territorial jurisdiction of Palestine.
The investigation, officially announced in March 2021, primarily covered alleged crimes dating to June 13, 2014, when neither Israel nor the Palestinians were subject to the Court’s authority. In addition, the Court delved into Israeli settlement policy in the Occupied Territories. It was at the instigation of Arab states that the Rome Statue made introducing a civilian population into the territory it occupies a war crime.
The “alleged crimes” of June 2014 “committed in the occupied Palestinian territory” addressed Israel’s actions during Operation Protective Edge. Like October 7th 2023 , the violence began with a Hamas terrorist attack, the kidnapping and murder of three Israeli youth on June 12th.
By acceding to the International Criminal Court, the Palestinians clearly did not intend for it to investigate the kidnappings or acts of terrorism perpetrated by Hamas; rather, they sought to use the Court as a strategic weapon against Israel.
The territorial jurisdiction ruling
Chief Prosecutor Bensouda was convinced that “the Court’s territorial jurisdiction extends to the Palestinian territory occupied since 1967, including East Jerusalem and that ”war crimes have been or are being committed there.” However, she sought confirmation due to conflicting views on Palestine’s statehood, its lack of full control over the occupied territories, disputed borders, and the Palestinian Authority’s absence in Gaza’s governance.
Based on the UN General Assembly granting of Non-member State status to Palestine and its adhesion to the Rome Statue, a majority of two out of three judges, ruled that “the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
Noting that UN General Assembly resolutions are non-binding, the presiding judge, Hungarian Péter Kovács, issued what the Court called “a Partly Dissenting Opinion:”
In the present ruling, I am unable to identify the actual rules of international law and the actual legal approach of the UN regarding Palestine’s statehood and its territory and borders on which the Majority Decision is based. ‘The State Party’ qualification cannot change this fact. Acrobatics with provisions of the Statute cannot mask legal reality.
Israel and Palestine and the ICC post October 7th
On October 7, 2023, approximately 3,000 Hamas terrorists invaded southern Israel from the Gaza Strip, from which Israel had withdrawn in 2005, perpetrating a massacre on the surrounding communities and a music festival. During the attack, 1,200 Israelis were killed, thousands were injured, and 251 hostages were abducted. The attackers filmed their horrific acts, including rape, decapitation, dismemberment, and the murder of children in front of their parents, using body cameras.
Israel launched a counterattack to stop missile fire into its territory, secure the return of hostages, and deter future threats from Hamas.
In early December, 2023 Karim Khan visited Israel and the Palestinian Authority in a mission he termed “not investigative in nature.” Meeting with the families of Israeli victims of the October 7th massacre, he called for the “immediate” release of the hostages by Hamas.
He then met President Mahmoud Abbas and other Palestinian officials in Ramallah, emphasizing the significance of his first official visit to “the State of Palestine.” After meeting with the families of Palestinian victims, he said that “we must never become numb to such suffering.”
It was an attempt to show even-handedness less than two months after October 7th and just over a month after Israel launched its full-scale counterattack on the Gaza Strip. The chief prosecutor blundered, however, by referring to Red Cross’ assessment of “ the dire humanitarian situation in Gaza,” while not mentioning that Hamas refuses to grant them access to the Israeli hostages, a violation of the Geneva Convention.
Karim Khan concluded the communique with the hope that “this visit represents my first but not my last to both Israel and Palestine.” In contrast to his multiple trips to Venezuela, he did not return before announcing on May 20, 2024, that he was applying for arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three Hamas leaders following a seven-month investigation.
The announcement came the same day that ICC staff were scheduled to arrive in Israel and begin a series of meetings with government and military officials in preparation for the Chief Prosecutor’s first investigative visit to Israel. According to the Wall Street Journal, Israel was prepared to prove that its conduct during the war in Gaza was consistent with international law.
When questioned about the planned meetings in Israel, the Chief Prosecutor’s office replied that it had given Israel ample opportunity over the past three years “to engage in dialogue and provide information relevant to its investigation into conduct in the Palestinian territories, which began well before the October 7th Hamas attacks and Israel’s military response.”
The Venezuela investigation: a different timeframe
While Karim Khan never made an official investigative trip to Israel, he visited Venezuela on four occasions, meeting with President Nicolás Maduro and other members of the government and even addressing the National Assembly. The visits covered a period from November 5, 2021, to April 22, 2024, close to two and a half years.
During his visits, the Chief Prosecutor and the Venezuelan authorities signed Memoranda of Understanding, which included a Joint Work Plan that contained “provision of support on legislative amendments, delivery of training to national authorities, and the development of mechanisms for enhanced positive complementarity.” Finally, Khan cut the ribbon, inaugurating a new in-country office of the ICC Office of the Prosecutor in Caracas on April 22, 2024.
For an experienced human rights attorney, Karim Khan seems incredibly naive, sparing no effort to reform an authoritarian regime that has caused economic collapse and mass migration unparalleled in Latin America’s history.
The Chief Prosecutor claimed that Israel had many occasions over the past three years to respond to its ongoing investigation. It has been over three years since the ICC initiated its official investigation into Venezuela, still no arrest warrants have been requested.
Israel: the question of continuity in the investigation
On November 21, 2024, The ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Former Israeli Defense Minister Yoav Gallant “for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024.”
The statement clearly indicates that the warrants were issued in response to the October 7, 2023, invasion of southern Israel by Hamas terrorists, and Israel’s subsequent counteroffensive.
While there may be some overlap between the alleged crimes investigated prior to October 7th, the primary accusation of “the war crime of starvation as a method of warfare” is new and marks the first application of this charge in history. The ICC clearly did not give Israel enough time to invoke the complementary clause that allows a state to investigate itself before the request for warrants was made by the prosecutor.
While the original referral to investigate Israel was made by the Palestinian Authority, following October 7th, the ICC received referrals from seven Member States. This indicates a notable change from the pre-existing investigation. Just Security, an online forum at New York University School of Law concluded:
Although the request for arrest warrants announced by Karim Khan, the current ICC Prosecutor, on May 20, 2024, stems from the same Palestine Situation, it obviously relates to very different set of events from those introduced by former Prosecutor Bensouda in 2021, and relates to a different temporal framework.
The ICC did not consider this, preferring to rush through the warrants while denying Israel’s right to respond within a reasonable timeframe.
The issue of moral equivalence
In addition to the warrants issued for the Israel’s leaders, another was issued for Mohammed Diab Ibrahim al-Masri (nom de guerre, Mohammed Deif), Hamas’ military leader, reportedly killed by the IDF. This creates a moral equivalence between Israel’s democracy and Hamas, which is considered a terrorist group by the United States and other important democratic nations.
The question of self-defense
It took the ICC a year from the beginning of its investigation to issue an arrest warrant for Vladimir Putin regarding the ongoing war between Russia and Ukraine. In that case, Russia was clearly the unprovoked aggressor.
Following Hamas’ unprovoked attack on Israel, the IDF conducted operations with caution to pursue militants beneath hospitals where they ran their operations and held hostages. The terrorists used civilians as human shields and launched missiles from their homes. According to David Scheffer, former U.S. ambassador-at-large for war crimes, Israel was not given a sufficient opportunity “to justify the way it is waging warfare in Gaza.”
This is especially relevant as Israel, a longstanding democracy with an independent judiciary and military justice system, should not have been subject to ICC involvement, as noted by a bipartisan group of U.S. senators in May.
Tone of the investigations
The contrast in the tone of communication between the ICC and its chief prosecutor when dealing with the two cases seems to reveal the chief prosecutor’s respect for authoritarian Venezuela and his hostility towards democratic Israel.
The Venezuelan autocrat, accused by the UN and Human rights organizations of murder and forced disappearances, and wanted for narco-terrorism by the USis referred to as “His Excellency” For example: “A clear commitment from His Excellency President to invite the Office of the United Nations High Commissioner for Human Rights to return to Venezuela.”
This could be considered standard diplomatic protocol, but the tone of the memoranda belies an underlying cordiality. Karim Khan “had the honor to address the National Assembly of Venezuela.” What kind of honor is it to address a legislative body that was elected fraudulently in 2020 according to the Venezuelan opposition and international actors such as the European Union, the United States, the Organization of American States and the Lima Group.
Khan was “delighted to inaugurate a new in-country office of the ICC Office of the Prosecutor in Caracas, focused on complementarity activities and engagement with the national authorities.”
Compare this with the more diplomatic ICC memorandum regarding the establishment of an office in Ukraine in March 2023 to investigate alleged Russian was crimes: “We are very grateful for the cooperation, support and assistance we have received from the government of Ukraine and look forward to strengthening our cooperation in the future,”
Shared responsibility versus subtle animosity
When it comes to Venezuela, Karim Khan emphasizes the shared responsibility for the investigation of crimes against humanity: “I have been clear that the meaningful realization of the vision set out in the Statute can only be achieved by deepening cooperation and by finding common ground wherever possible, even in complex and challenging circumstances.”
No such cooperation existed when dealing with Israel.
Following his meeting with Venezuela’s chief prosecutor, Khan said, “I think there is unity on a central truth: that the dark cloud of suspicion or allegations will not lift without the gentle breeze or winds of credible investigations.”
Why is the ICC so gentle with Venezuela and yet so harsh with Israel?
An expanded role for the ICC?
Perhaps for Karim Khan, armed conflicts with international implications are more alluring than dealing with an unflamboyantauthoritarian such as Nicolas Maduro. Russia/ Ukraine and “the Situation in Palestine” give the chief prosecutor a more global stage and allow him to go beyond the ICC’s goal of “building a more just world” to encompass the very mission of the United Nations, “the maintenance of international peace and security.”
Anti-Israel bias?
The International Criminal Court has been accused of harboring a pro-Western bias since it has primarily prosecuted authoritarian non-Western leaders, particularly in Africa. Some see the warrants for Israel’s democratic leaders as an attempt to break that mold. Yet when examining bias, one cannot help noting that the two chief prosecutors who dealt with “the Situation in Palestine” are of the Muslim faith or, perhaps, harbor the anti-Israel prejudices that have become common among the developing nations at the UN.
Upon concluding the preliminary examination, Chief Prosecutor Fatou Bensouda stated “I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.” Given that the purpose of an examination is to establish ICC authority for an investigation, implying that crimes are definitively occurring indicates bias, particularly since it was over a year before the Court even ruled on its territorial jurisdiction.
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Karim Khan’s mentor was the international jurist, Muhammad Zafarullah Khan who served as the first foreign minister of Pakistan. As one of the founding fathers of the newly created Muslim nation, he argued adamantly against the creation of a Jewish state in Palestine at the UN in 1947. Like his protégé, who calls him his “adopted grandfather,” Muhammad was prominent member of the Ahmadiyya Muslim movement.
Khan’s lack of sympathy for the Jewish State is obvious from both his actions and his words. At his sexual misconduct hearing, the Chief Prosecutorsaid, “looking at the globe, we see a pandemic of inhumanity. Look at Ukraine, look at Palestine, look at Darfur.” Like his mentor he excludes Israel.
Corruption at the International Criminal Court?
In May, Khan was accused of sexual harassment of a female employee of the ICC. CBS News reported that Senator Lindsey Graham is seeking records about whether the misconduct accusations played any role in Khan’s decision that same month to cancel an aide’s planned visit to Israel and move ahead with the war crimes charges against Netanyahu and Gallant.
In September 2024, the Washington Post reported that chief prosecutor Karim Khan’s sister-in-law, international criminal lawyer Venkateswari Alagendra, began representing President Nicolás Maduro and Minister of Interior Diosdado Cabello Rondón before the ICC. This is a clear violation of organization’s code of conduct that requires that its members refrain from any conflict that may arise from “personal interest in the case, including a spousal, parental or other close family, personal or professional relationship with any of the parties.” A request in September that the Chief Prosecutor recuse himself from the case of Venezuela has not yet been acted upon.
It seems that the International Criminal Court that seeks “a world without impunity,” should do some serious introspection and house cleaning before proceeding to its goal of “building a more just world.”