analysisIsrael at War

ICC, ICJ may hinder Israel’s war effort, despite Netanyahu’s assurances

In addition to complicating Israel's ability to strike multilateral agreements toward ending the war, rulings against Israel could spur the Security Council to demand a ceasefire, forcing Jerusalem to rely on a U.S. veto.

British lawyer Karim Ahmad Khan was elected on Feb. 12, 2021 to replace Fatou Bensouda as chief prosecutor of the International Criminal Court in New York City. Credit: ICC.
British lawyer Karim Ahmad Khan was elected on Feb. 12, 2021 to replace Fatou Bensouda as chief prosecutor of the International Criminal Court in New York City. Credit: ICC.
Troy Osher Fritzhand
Troy Osher Fritzhand
Troy Osher Fritzhand is the Jerusalem correspondent at JNS, covering the capital city, the Prime Minister's Office and the Knesset. He was previously the politics and Knesset reporter at The Jerusalem Post and has written for the Algemeiner Journal and The Media Line. Also an active member of the city's tech scene, he resides in Jerusalem with his wife.

Despite promises by Israel’s leadership that any international court ruling or arrest warrants will not stop the Gaza war effort, it could indeed potentially hamper Israel’s ability to fight.

“The sense outside Israel that basic rules of international law have been violated by Israel is now reinforced by the ICC prosecutor and his panel of experts,” professor Yuval Shany, an international law expert and Senior Fellow at the Israel Democracy Institute, told JNS.

“This, in turn, will make it more difficult for allies to continue to support Israel and could lead to the cutting off of military aid and other forms of support,” he said.

“The fact that the Israeli leadership is now viewed as potentially implicated in war crimes or crimes against humanity would also complicate Israel’s ability to strike multilateral agreements and build coalitions for ending the war,” he added.

ICC Prosecutor Karim Khan announced on Monday that he is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and the leadership of Hamas.

Khan’s announcement on Monday apparently came as a surprise to the United States, which has sharply criticized the move.

“The United States fundamentally rejects the announcement today from the Prosecutor of the International Criminal Court (ICC) that he is applying for arrest warrants for senior Israeli officials, together with warrants for Hamas terrorists,” said U.S. Secretary of State Antony Blinken in a press statement on Monday.

Khan’s request not only violated the principles of complementarity, but also established a “shameful” equivalence between Israel and Hamas, ” a brutal terrorist organization that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans,” the statement continued. 

In addition to the issue of jurisdiction, Blinken also noted “deeply troubling process questions” surrounding the move by Khan.

“The prosecutor had been scheduled to visit Israel as early as next week to discuss the investigation and hear from the Israeli government. His staff was to have landed in Israel today to coordinate the visit; Israel was informed they had not boarded their flight around the same time Khan went on cable television to announce the charges,” he said.

“These and other circumstances call into question the legitimacy and credibility of this investigation,” which not only does nothing to help but could actually jeopardize ongoing hostage negotiations between Israel and Hamas,” the statement continued.

At the same time, the International Court of Justice is deliberating on charges of genocide levied against Israel by South Africa over its conduct of the war.

Senior Israeli officials told Israel Hayom on Thursday that there is concern in Jerusalem that the court may call for an immediate cessation of hostilities in Rafah in southern Gaza, or in the entire Gaza Strip.

While such a ruling would not be binding, it could lead the U.N. Security Council to demand a ceasefire, necessitating a U.S. veto, the official said.

While Netanyahu has sworn that even if the ICC approves Khan’s request for arrest warrants or the ICJ calls for a ceasefire Israel will not stop, Israel’s dependence on the U.S. veto in the Security Council, as well on the supply of armaments from Washington, could force his hand.

In a scenario where the U.S. fails to exercise its veto, Israel could find itself forced to prosecute the war alone, or be put in a position where it must make a one-sided deal with Hamas that may bring some hostages home but leaves the terrorist group in power.

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