Jack Smith and the International Criminal Court

The International Criminal Court at the Hague was back in the news recently with the announcement by its chief prosecutor that he would seek charges against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for war crimes in Gaza, while simultaneously seeking charges against the leaders of Hamas for war crimes in Israel. This obscene act of moral equivalency tells you all you need to know about the ICC. It’s also a reminder that the most powerful prosecutor at work in the U.S. today, Special Counsel Jack Smith, has significant connections to the controversial court and another Hague tribunal.

From 2008 to 2010, Smith was the Investigative Coordinator for the Office of the Prosecutor of the ICC—the same office that today is seeking arrest warrants for Netanyahu and Gallant from a three-judge ICC panel. Founded in 2002 to pursue war crimes, the ICC has been viewed with skepticism by, among others, the U.S., Israel, Russia, China, and many African nations. In 2018, then-National Security Adviser John Bolton castigated the ICC for its failure to “deter and punish atrocity crimes” and its  “threat to American sovereignty.” Last week, reacting to news of the Netanyahu arrest warrant, the House voted to sanction the ICC.

ICC records indicate that during and shortly after Smith’s tenure at the organization, it brought cases against high-ranking figures in the Congo, Sudan, Kenya, the Ivory Coast, and Libya. None appear to have resulted in convictions.

But back at Main Justice, Obama Administration figures were impressed. In 2010, Smith was plucked to head the Justice Department’s Public Integrity Section—a big promotion for a relatively untested young prosecutor. He served to 2015, supervising cases against former Virginia Governor Bob McDonnell, New York power broker Sheldon Silver, former Congressman Rick Renzi, and CIA operative Jeffery Sterling, among others.

In 2014, Smith was eyed by Congressional investigators examining IRS targeting of conservative groups. Smith testified that following a meeting with IRS official Lois Lerner, his office “had a dialogue” with the FBI about opening investigations into conservative groups, according to a copy of the interview obtained by CNN. Smith said the conversations did not lead to investigations. It does not appear that the Smith work product from the House probe—interview transcripts, investigator notes, memos—was ever made public. Read more about Judicial Watch’s investigation of the IRS affair here.

By 2018, Smith was back at the Hague, this time as chief prosecutor for the Kosovo Specialist Chambers, another highly unusual judicial body, formed to prosecute war crimes committed during the 1998-2000 Kosovo War. In 2020, Smith indicted the former president of Kosovo, Hasim Thaci, for war crimes committed in 1998 and 1999. Thaci was extradited to the Hague and his trial is currently underway.

In 2022, Attorney General Merrick Garland brought Smith back to the U.S. to take over the investigation of former president Donald Trump. The rest is history. Two indictments of Trump quickly followed, along with rising public concern about Smith’s targeting of the frontrunner for the GOP presidential nomination.

Judicial Watch has launched several investigations of Smith. We’re closely tracking developments at the Hague for what they might reveal about Smith’s prosecutorial conduct. We sued the Justice Department after it denied our FOIA request for the names of senior staff working for Smith; Justice responded by asking a federal court to keep those names secret. We also sued for records and communications between Smith and state prosecutors in the separate Georgia investigation of Trump. To date, in that case, the Justice Department has refused to confirm or deny the existence of records, claiming that to do so would interfere with law enforcement proceedings. We’ll continue pressing forward on all fronts.

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Micah Morrison is chief investigative reporter for Judicial Watch. Tips: [email protected]

Investigative Bulletin is published by Judicial Watch. Reprints and media inquiries: [email protected]