analysisIsrael at War

Israel faces an uncertain path in the wake of the ICC arrest warrants

Israeli experts weigh in on the various ways the country could respond to the controversial ruling.

Cyrielle Chatelain MP, chairwoman of the Ecologist and Social Group and member of the left-wing opposition coalition Nouveau Front Populaire NFP, questions French Prime Minister Michel Barnier on the decision by the International Criminal Court to issue an international arrest warrant for Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, in the hemicycle of the Assemblee Nationale in Paris, France, on Nov. 26, 2024. Photo by Amaury Cornu/Hans Lucas/ AFP via Getty Images.
Cyrielle Chatelain MP, chairwoman of the Ecologist and Social Group and member of the left-wing opposition coalition Nouveau Front Populaire NFP, questions French Prime Minister Michel Barnier on the decision by the International Criminal Court to issue an international arrest warrant for Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, in the hemicycle of the Assemblee Nationale in Paris, France, on Nov. 26, 2024. Photo by Amaury Cornu/Hans Lucas/ AFP via Getty Images.
Shimon Sherman

For the past several months Israel has been fighting on multiple fronts, however, one of the war’s most critical theaters has increasingly been not Lebanon or Gaza, but The Hague. Anti-Israel activists have been investing in lawfare as one of the most effective weapons with which to weaken and delegitimize Israel. This phenomenon took center stage when the International Criminal Court (ICC) last week issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for “the war crime of starvation as a method of warfare” and “crimes against humanity, including murder, persecution, and other inhumane acts.”

This development followed months of speculation as to whether the court would commit itself to this extreme eventuality. Although the ICC has leveled charges against heads of state before, they have never led to an actual conviction. “There is no precedent at all for arresting heads of state,” Avraham Shalev, an expert in public law for the Kohelet Policy Forum, told JNS. 

It is broadly accepted in Israel that the court is pursuing this case out of political interest. “This is a case that has nothing to do with international law and everything to do with political interests,”  said Shalev. Nitsana Darshan-Leitner, an Israeli attorney, human rights activist and the founder of Shurat HaDin – Israel Law Center agreed, telling JNS, “This court is not a judicial court, it’s a political court. This court does not rely on evidence or legal argument; they are just advancing the anti-Israel position.” 

The ICC was founded in 2002 based on an international agreement called the Rome Statute. According to experts the recent displays of anti-Israel bias are not a bug but a feature of the ICC.

“The antisemitism of the international institutions goes back years and years. There is a deep desire to offload and project the guilt and the crimes of Europe onto the Jewish state,” former Knesset member Einat Wilf told JNS.

“From the beginning, the Rome Statute was designed to go after Israel,” Shalev explained. When the Rome Statute was being formulated, most of the clauses were taken almost verbatim from the Geneva Convention, except for the section surrounding laws of population transfer. Article 49 of the Fourth Geneva Convention forbids the forced transfer of populations to or from an occupied territory. However, under request from various Arab states at the Rome conference, this definition was expanded to “the transfer, directly or indirectly, by the Occupying Power of parts of its civilian population into the territory it occupies.”

“The very formulation of the Rome Statute was designed to criminalize the presence of Jewish communities in Judea and Samaria. Under these terms, building roads, allowing Jews to own property and many other things can be called ‘indirect population transfer,’” explained Shalev. “This clause has Israel’s name on it,” he added.

Under the Rome Statute, member states are required to carry out arrest warrants passed down by the court, but there is no official enforcement mechanism to ensure this happens. In this context, multiple member states have given official responses to the arrest warrants, spanning the gamut from hyper-supportive of Israel to downright hostile. Countries like Hungary and Argentina immediately declared that they would not enforce the warrants. Meanwhile, major Western countries, including the United Kingdom and Canada, said that they would arrest Israel’s premier if he were to visit.

There are a litany of issues with the case against Netanyahu and Gallant, possibly the most egregious of which is the charge of “starvation as a method of warfare.”

“This is the first time that starvation has been used as a standalone charge,” said Shalev. According to the laws of war, countries must allow humanitarian aid into affected areas, under the condition that the aid reaches the civilian population and is not being seized by enemy forces. “There is absolute documentation of Hamas taking over humanitarian convoys and preventing the aid from getting to civilians. This removes the legal necessity for Israel to participate or allow humanitarian aid,” Shalev told JNS.

Furthermore, even if Israel pursued a full siege tactic, this could still be a method of warfare recognized under international law. According to the Geneva Convention and International Humanitarian Law (IHL), “The prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population,” said Shalev. 

Wilf further added that in her view the application of these laws to Israel shows a fundamental perversion of reality by the ICC. “Israel should not only not be charged with crimes against humanity, they should be lauded for their restrained and professional conduct during the war. The fact that the court is going after Israel on this issue shows that it is not interested in justice,” she said

From here there are several ways for Israel to move forward. The most non-confrontational path would be for Netanyahu and Gallant to submit themselves to the tender mercy of the ICC. The ICC does not try defendants in absentia, meaning that to move forward Netanyahu and Gallant would have to present themselves at The Hague to stand trial. In preparation for this possibility, American attorney Alan Dershowitz announced this week that he is gathering a “legal dream team” to defend Israel in The Hague. “The rule of international law is being destroyed and disgraced by the ICC,” Dershowitz said in a recent statement.

Despite these preparations, the likelihood that Netanyahu and Gallant will subject themselves to an ICC trial is very low.

“The legal route would be to go to The Hague and to stand trial, which would be a very bad idea and is almost certainly not going to happen,” said Shalev. 

The alternative and far more likely route is the application of diplomatic and economic pressure to undermine the rule of the ICC and to shrink its global influence.

“This is not an unprecedented scenario. When warrants were put out against the leader of Kenya, they organized the African Union to come out with declarations against the ICC and to encourage several active states to pull out of the Rome Statute,” Shalev explained.

A leading player in this effort will likely be the United States. Washington has already vehemently spoken out against the arrest warrants.

“The United States fundamentally rejects the Court’s decision to issue arrest warrants for senior Israeli officials. We remain deeply concerned by the Prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision,” said a White House National Security Council spokesperson. 

In recent days, multiple U.S. political leaders declared their opposition to the ICC ruling and committed themselves to seeking active measures to counteract the development.

“The ICC has no credibility and these allegations have been refuted by the US government. You can expect a strong response to the antisemitic bias of the ICC and U.N. come January,” said former representative Mike Waltz, President-elect Donald Trump’s pick for national security advisor.

Incoming Senate Majority Leader John Thune recently posted on X that “if the ICC and its prosecutor do not reverse their outrageous and unlawful actions to pursue arrest warrants against Israeli officials, the Senate should immediately pass sanctions legislation.”

Sen. Lindsey Graham went a step further, threatening any nation that cooperates with the ICC on this issue with crippling sanctions.

“If you are going to help the ICC, as a nation, enforce the arrest warrant against [Netanyahu] and Gallant, the former defense minister, I will put sanctions on you as a nation, you’re gonna have to pick the rogue ICC versus America,” said Graham. According to Graham, the prosecution of Israel under the ICC threatens U.S. national interests as it sets up a precedent for the ICC to prosecute members of non-member states. “Why can’t they go after Trump or any other American president under this theory?” he said.

According to Darshan-Leitner, “The sanctions would be against individual members of the court. You can block them or their families from coming into the states. The ICC prosecutor has two children studying it in the States. Also, their economic sanctions can block them from using credit cards or bank accounts associated with the U.S. banking system.” These sanctions “could include the prosecutor, the judges, and any employee of the court. This would be very destructive for them,” she added.

In the past, the United States has already successfully used international pressure to block ICC investigations into alleged war crimes committed by U.S. soldiers in Afghanistan. “The ICC opened an investigation into Afghanistan but the Trump administration put pressure on the ICC and they decided that it was not in the interest of justice to continue the case,” Shalev explained. 

In addition to U.S. pressure, Israel will likely also have to delineate a clear foreign policy in relation to this development. The United States currently has a law on the books called “The Hague Invasion Act,” which gives the U.S. president authority to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” The United States clearly defines the arrest of its citizens under the auspices of the ICC as a red line that may be responded to through the use of force.

Israel’s political establishment, for its part, has broadly criticized the ICC decision, however it has established no clear deterrence or policy that plainly defines Israel’s position on the potential arrest of its prime minister by a foreign power. “For years there has been talk of passing a similar law in Israel, and Netanyahu has supported it, but that is one of Israel’s important next steps. To make it clear that such a thing would be seen as an act of war and to make sure that such a law would have sanctions on Israeli NGOs that are collaborating with the ICC,” said Shalev. 

An alternative response to the ICC arrest warrants has been championed by some members of Israel’s legal aristocracy. This strategy would seek to lean on the principle of complementarity, according to which “a case is inadmissible before the ICC if it is currently under investigation by a state with jurisdiction over it,” as stated in the Rome Statute. This strategy was promulgated by Israel’s former deputy attorney-general Roy Schondorf, who led the country’s efforts to defend itself against war crimes and the ICC for about 13 years until mid-2022. Israel can protect itself by “opening an external, independent Israeli state inquiry to be led by a former judge,” he said. This model was already successfully used in 2008-9 by the Turkel Commission, which Israel used to block investigations by the ICC and the U.N. Goldstone Commission Inquiry.

Other experts believe that complementarity will not be sufficient.  “Right now the Israeli Supreme Court is hearing a petition on humanitarian aid to Gaza, and it is not clear why that is not sufficient to establish complementarity. The fact that this is not considered sufficient by the ICC underscores a lack of good faith,” Shalev told JNS. “On every level, from jurisdiction to complementarity, the court has no right to prosecute this case, and the fact that they’re doing it anyways shows that they are politically motivated,” added Darshan-Leitner.

Some experts believe that the current situation with the ICC is just a symptom of a larger problem that requires a more holistic response. Over the past few decades, there has been a systematic takeover of internationalist institutions by malicious actors. From the United Nations to the ICJ to the ICC, almost every globalist institution has shown signs of rabid antisemitism and anti-westernism. At every turn, these institutions have shown themselves to be corrupt, failing and unsustainable. A more appropriate response to the ICC would thus be a policy pivot away from the current post-World War Two internationalist framework, and toward new international institutions that are more in line with Israeli and Western interests. 

“The current system is untenable, where every country gets one vote regardless of how lousy they are or how they treat their people and how undemocratic they are. This is fundamentally corrupt,” said Shalev. “The lie of antisemitism, which has brought down many countries, is now causing the downfall of the post-WWII international system, and America and the Western countries would be wise to notice that. We are on the verge of the collapse of the system. We’re seeing the old system crumble. We need to begin to think about what will replace it,” he added.

Darshan-Leitner on the other hand was more pessimistic. “Looking at the reaction of the European states to the arrest warrant, I think it is very unlikely that this institution will crumble in the near future. They’re not going to pull out of the ICC, they’re not going to back out of the situation, they are too committed,” she said.

You have read 3 articles this month.
Register to receive full access to JNS.

Just before you scroll on...

Israel is at war. JNS is combating the stream of misinformation on Israel with real, honest and factual reporting. In order to deliver this in-depth, unbiased coverage of Israel and the Jewish world, we rely on readers like you. The support you provide allows our journalists to deliver the truth, free from bias and hidden agendas. Can we count on your support? Every contribution, big or small, helps JNS.org remain a trusted source of news you can rely on.

Become a part of our mission by donating today
Topics
Thank you. You are a loyal JNS Reader.
You have read more than 10 articles this month.
Please register for full access to continue reading and post comments.