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What is the legal case against Israel in the ICC?

“This is a case that has nothing to do with international law and everything to do with political interests,” legal expert tells JNS.

The judges and guests of the International Criminal Court at the opening of the ICC judicial year on Jan. 18, 2019, in The Hague. Credit: International Criminal Court.
The judges and guests of the International Criminal Court at the opening of the ICC judicial year on Jan. 18, 2019, in The Hague. Credit: International Criminal Court.
Shimon Sherman

For the past several months Israel has been fighting on multiple fronts. One of the most critical theaters of the current war, however, has increasingly been not Lebanon or Gaza, but The Hague.

Increasingly, anti-Israel activists have been investing in lawfare as one of the most effective weapons with which to weaken and delegitimize Israel. According to recent reports, the International Criminal Court is now considering issuing arrest warrants against various high-ranking Israeli officials, including Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and Israel Defense Forces Chief of Staff Herzi Halevi.

This move is being egged on by a series of countries in the anti-Israel coalition including, most notably, South Africa and Turkey.

“This is a case that has nothing to do with international law and everything to do with political interests,” Avraham Shalev, an expert in public law for the Kohelet Policy Forum, told JNS. 

The ICC has never issued an arrest warrant against the leader of a democratic country, and if it follows through, Netanyahu would find himself in the undesirable company of Sudan’s President Omar al-Bashir, former Libyan ruler Muammar Gaddafi and Russian President Vladimir Putin, the only national leaders with arrest warrants from the ICC. 

There is currently no concrete statement from the ICC regarding the legal details surrounding a potential indictment of Israeli officials. In 2021, then-chief prosecutor Fatou Bensouda opened an investigation into “possible crimes committed in the West Bank and Gaza” by Israel. Notably, Bensouda decided to set the chronological limit of the investigation at June 13, exactly one day after Palestinian terrorists kidnapped and murdered three Israeli teenagers, thereby launching “Operation Brother’s Keeper” and “Operation Protective Edge.”

In this way, the ICC probe initially sought to “probe Israeli attacks on civilian populations and violations of international law during Operation Protective Edge” without the context of the terrorist activity that sparked the 2014 Gaza war. “In the very setup of the case you can see an inbuilt bias against Israel,” said Shalev.

The current case against Israeli officials is quite broad and will likely look at “Israeli settlement activity, and use of disproportionate force during Protective Edge,” with alleged transgressions from the ongoing conflict likely being tagged onto the already existing case, he explained.

The ICC’s prosecutor, Karim Khan, has made statements regarding Israel’s provision of humanitarian aid and targeting of civilian infrastructure, implying that both might play a role in a future criminal prosecution. In a speech on Oct. 30 Khan said, “ I want to underline clearly to Israel that supplies must get to the civilians of Gaza without delay,” and cautioned Israel to “demonstrate the proper application of the principles of distinction, precaution and of proportionality.” 

According to the laws of war, countries are required to 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 were to enforce a full siege of Gaza, this could still be a legal method of warfare under international law, he said.  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.”

Israel’s rejection of ICC jurisdiction, including the territory of Gaza, Judea and Samaria, presents a further legal hurdle, he explained.

The ICC’s jurisdiction extends over crimes committed “on the territory of a State Party [to the Rome Statute] or by one of its nationals,” which does not include Israel but according to the ICC does include “Palestine,” as the Palestinian Authority did sign on to the Rome Statute in its capacity as a U.N. observer state. 

The ICC has sought to legitimize its shaky claims of jurisdiction by passively going after Palestinian terror groups in tandem with its case against Israeli officials. Following a visit to Israel in December 2023, Khan said that the ICC was investigating the crimes against Israeli civilians as “some of the most serious international crimes that shock the conscience of humanity.”

A source close to the ICC prosecutor’s office told JNS that “any arrest warrant against Israeli officials will likely come together with warrants against members of Hamas and Islamic Jihad to give the court a balanced image.”

However, the impact of an indictment will likely be far greater on Israel than on Hamas.

“The effect on Israel’s reputation as a democratic country will be much worse than for a fundamentalist terror group like Hamas,” said Shalev.

The case before the ICC is also legally problematic due to the issue of complementarity. The principle of complementarity indicates that “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.

Multiple cases of alleged international law violations are being tried in Israeli military courts. Khan himself has previously recognized that “Israel has a professional and well-trained military with military advocate generals and a system that is intended to ensure their compliance with international humanitarian law, and lawyers advising on targeting decisions.” Therefore, any case brought against Israeli nationals would first have to prove that the Israeli legal system is incapable of or unwilling to probe the alleged violation fairly. 

According to experts, the recent displays of anti-Israel bias at the ICC are not a bug but a feature.

“From the very beginning, the Rome Statute was designed to go after Israel,” Shalev explained. When the statute was being formulated, most of the clauses were taken almost verbatim from the Geneva Convention, with the exception of the section involving the laws regarding population transfer.

Article 49 of the Fourth Geneva Convention specifically forbids the forced transfer of populations to or from an occupied territory. However, at the request of 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.” Though this expanded definition could have been applied in several cases, including Turkey’s settlement policy in Cyprus and Russia’s transfer of population into Ukraine, this clause has only been used to go after Israeli communities in Judea and Samaria.

“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,’” said Shalev. “This clause has Israel’s name on it,” he added. 

Though ICC arrest warrants would certainly negatively affect Israel’s international standing, it is important not to overstate the legal implications. In its 22 years, the ICC has never had a single successful conviction and arrest without cooperation from the defendant’s host nation. While technically signatories to the Rome Statute, including most European countries, would have an obligation to carry out such warrants, there is a long-standing precedent for diplomatic arrangements being made to skirt ICC rulings.

In other words, even if a warrant is issued, “There won’t be police on the tarmac in Europe if Netanyahu goes abroad,” Shalev explained. “There is a lot of leeway in reality,” he added.

The current conflict with the ICC has led to various methodologies being advanced to counter the growing threat of lawfare. Former deputy attorney-general Roy Schondorf, who led Israel’s efforts to defend itself against war crimes accusations and the ICC for about 13 years until mid-2022, has strongly advocated leaning on complementarity as a legal shield.

Israel can protect itself by “opening an external, independent Israeli state inquiry, to be led by a former judge,” he said. This model was 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 have proposed a more aggressive approach to dealing with the ICC.

“We shouldn’t fall into the trap of thinking that if we cooperate and we show the world we are playing by the rules then sooner or later they will see our perspective,” said Shalev. “Ultimately this is not a question of law; by every metric the legal arguments are flawed. There is a clear political angle and our best bet is to stonewall. Don’t talk to them, don’t release documents and don’t engage,” he added.

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