Some of the external advisers on whom the prosecutor at the International Criminal Court (ICC) in The Hague based his decision to seek arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant had already expressed anti-Israel views years before the Gaza war. This was revealed by an examination conducted by the international law expert, Prof. Eugene Kontorovich, head of the International Law Department at the Kohelet Policy Forum.
Chief Prosecutor Karim Khan wrote that he was "grateful for the advice of a panel of experts in international law," which he described as an "impartial group." This is an exceptional procedure in which the court also relies on external advisers before deciding on the issue. The purpose of the consultation is to enhance credibility regarding the decision.
In an op-ed he published in the Wall Street Journal, Kontorovich exposed that at least some of the experts mentioned by Khan had expressed negative views toward Israel long before the outbreak of the war.
For example, Prof. Kevin Jon Heller, whom Prosecutor Khan described as "independent," tweeted in 2020 that "two criminals (Donald Trump and Benjamin Netanyahu) are conspiring to commit criminal acts against Palestine and the Palestinians." Heller has served as a special adviser on war crimes to Chief Prosecutor Khan for two years. On other occasions, Heller wrote that Israel practices "apartheid" against the Palestinians.
In 2015, he wrote that Israel is "committed to systematically depriving the innocent of their most basic rights," and is guilty of the "systematic oppression of the Palestinians." Heller dismissed arguments in favor of Israel as "fake law and propaganda."
Another adviser relied upon by Prosecutor Khan is Baroness Helena Kennedy, a member of the Labour Party and the British House of Lords. Kennedy had called for the ICC to prosecute Israel long before the Gaza war began. In March, she wrote, "The International Court of Justice (ICJ) has given a warning to Israel; now is the time for all of us to say: enough is enough." Kennedy accused Israel of war crimes since the beginning of the war, and she also claimed that there is no safe place in the Gaza Strip.
Another member of the advisory panel to the chief prosecutor is a lawyer named Danny Friedman, who admitted that he defines himself as a lawyer who happens to be Jewish, except when he condemns Israel – then he puts his Jewishness at the forefront. Ten days after Hamas's heinous attack, and before the ground operation had begun, Friedman had already accused Israel of war crimes. In November, he argued that international law required Israel to immediately cease its campaign, even while Hamas was holding hostages.
Kontorovich noted that the bias of these experts was systematic and completely one-sided. The prosecutor accused Israel of committing war crimes based on the advice of people who, when chosen, had already reached that conclusion.
He emphasized that the prosecutor's reliance on biased advisers contradicts the court's own rules. "The ICC's Code of Conduct for Prosecutors 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.' The Code of Conduct says the 'impartiality' section requires 'refraining from expressing an opinion that could, objectively, adversely affect the required impartiality, whether through communications media, in writing or public addresses.' These rules don't apply to outside experts, but by selecting and relying on panel advisers who don't meet the ICC's own definition of impartiality, the prosecutor undermines his own."
Kontorovich stressed that Prosecutor Khan intentionally chose only advisers known not to accept Israel's position regarding the court's lack of jurisdiction. "It would have been easy for Mr. Khan to find experts with similar views who hadn't made their prejudices public. That Mr. Khan chose these advisers indicates that he valued certainty in the results above even the appearance of impartiality."
