The Israeli press reports strong government concern over the possible – as much as perhaps imminent – ruling by the International Criminal Court with an arrest warrant for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and Army Chief of Staff Herzi Halevi. The matter would be the main focus of government interest at this time, raising questions on the the possible consequences both in terms of foreign and domestic politics in the State of Israel.
Should they be indicted, it would in fact be impossible for Netanyahu, Gallant and Halevi to travel to any country that recognizes the legitimacy of the ICC (124 in all, the signatories to the Rome Statute), determining in that case the obligation for them to arrange for their detention and transfer to The Hague headquarters in the Netherlands. A condition of serious embarrassment for the Israeli government, and unprecedented in its history, which could lead to a profound political crisis in the country, which has already been shaken for months by continuous protests by the prime minister’s opponents and the most radical wing of the extreme right wing of his allies in the government.
A number of international media outlets have reported rumors in the substance of the ICC-led investigation, claiming that it examines events that took place from 2014 to the present in both West Bank and Gaza, while the alleged offenses would deal with the principle of “distinction, precaution and proportionality” adopted by Israel in the conduct of its operations in the two areas of the Palestinian autonomy. The same measures would affect several prominent Hamas figures, again providing for an unspecified number of arrest warrants for the organization’s political and military leadership.
The Israeli government’s strong concern was made clear during the televised address Prime Minister Netanyahu gave on April 30, where he expressed his disappointment with the ICC initiative while recalling the emergency managed by Israel to defend itself against what he described as “genocidal terrorists and regimes, such as Iran, that openly work to destroy the one and only Jewish state”. The prime minister strongly condemned the ICC’s initiative, arguing how this is the first time in history that a democratic state has been accused of war crimes while engaged in its own defense, at the same time running the risk of fueling the anti-Semitism that rages in many Western countries.
Netanyahu has accused Hamas of shielding civilians and hostages to wage its war, seeking to maximize the number of casualties through the use of public places as depots and bases of operations, while still holding hostage 133 Israeli civilians kidnapped during the attack last Oct. 7.
The ICC’s indictment of Israel, according to Netanyahu, also poses the risk of seeing such conduct replicated in the future against any democratic system, preventing it from defending itself against terrorism and preserving its own safety, foreshadowing the risk of a dangerous drift to the benefit of the democracies’ enemies.
Finally, in conclusion, the prime minister appealed to the leaders of the free world, hoping that they would stand firm against what he described as an outrage against the State of Israel, using every means to stop the ICC’s action.
Tones, in Netanyahu’s speech, that show a clear concern of the Israeli government, which sees the specter of increasingly strong international condemnation materializing on the handling of military operations in Gaza, with the real possibility that this will turn into a powerful multiplier of internal dissent within the State of Israel. Adding to Netanyahu’s fears, moreover, is South Africa’s request to the UN International Court of Justice for an investigation into the genocide allegation, which, although highly uncertain in its outcome, nonetheless risks being a strong media driver against Israel and the prime minister.
It is unclear at the moment which countries besides the United States intend to take up Israel’s invitation to prevent the ICC from issuing the arrest warrants. White House spokeswoman Karine Jean-Pierre expressed on April 30 the willingness of the United States not to support the action of the international judicial body, believing that it does not have the jurisdiction to carry out the ongoing investigation.
The United States, however, as well as Russia, China and Israel itself, is not a member of the International Criminal Court, which was established in 1988 with the signing of the Rome Statute and entered into force in 2022 to prosecute crimes committed in the former Yugoslavia and Rwanda. The ICC is tasked with trying individuals who commit crimes within signatory countries – unlike the U.N. International Court of Justice created to resolve disputes between states – and it is on this that Israel and the United States’ challenge to the legitimacy of the investigation. At the same time, however, the ICC’s jurisprudence expressly provides for the possibility of extending investigative action to third (non-signatory) countries if the acts under investigation have a direct connection with those of the country concerned. For this reason, the ICC believes that Prosecutor Karim Khan’s investigation is legitimate and allows for the inclusion of Israel, leading, however, to a complex legal debate that both Tel Aviv and Washington intend to argue firmly in the direction of no jurisdiction.
