By Jesse Kline
On Thursday, the worst fears of potential over-reach by the International Criminal Court (ICC) came to fruition, when a three-judge pre-trial panel voted to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant over alleged crimes in their prosecution of Israel’s defensive war against Hamas.
Despite the country’s hyper-partisan political environment, the decision was roundly condemned by Israeli politicians on both sides of the aisle. Opposition Leader Yair Lapid said the warrants amounted to a “reward for terrorism,” while National Unity Leader Benny Gantz called it a “shameful stain of historic proportion that will never be forgotten.”
On the international stage, reaction split sharply along partisan lines, with Israel’s allies — such as the United States, Argentina and Hungary — strongly condemning the warrants, and Hamas and its supporters, such as Turkey, coming out in favour, showing that this has more to do with politics than sound international law.
In Washington, representatives of both the Biden administration and the incoming Trump administration made their opposition clear, with a White House spokesperson telling the Times of Israel that the United States “fundamentally rejects” the ICC’s decision, as it believes the court “does not have jurisdiction over this matter.”
Indeed, this is exactly the type of worst-case scenario the U.S. was trying to prevent when the Rome Statute, which established in ICC, was being negotiated in the late 1990s.
Concerned that its position as the sole remaining superpower and the world’s de facto policeman would make it vulnerable to ICC prosecution, the U.S. introduced a number of safeguards intended to ensure the court would not be used to prosecute the leaders of liberal democracies acting in good faith to protect their citizens or intervene in foreign conflicts.
This included the requirement that the court adhere to the principle of “complementarity,” which prevents it from prosecuting officials in countries that are capable of launching their own investigations, as well as the stipulation that either the perpetrator or victim of the alleged crimes must be a party to the statute.
These concessions were still not enough to persuade the U.S. to sign onto the treaty, as it wanted the court to be entirely under the jurisdiction of the UN Security Council to prevent rogue prosecutors from engaging in political witch hunts.
Israel also refused to recognize the court, objecting to a clause prohibiting population transfers into and out of occupied territories, because it very easily could have been used against the Jewish state, even if it was acting in accordance with its obligations under the Oslo Accords.
As it turns out, both countries’ fears were perfectly justified.
This is the first time the court has ever issued warrants for the leaders of a democratic country with an independent judiciary — and it is a clear violation of the complementarity principal.
Although Israel sometimes has issues when it comes to prosecuting its own political leaders, history has shown that it is fully capable of doing so. The issue isn’t that Israel is incapable, or unwilling, to investigate “crimes against humanity and war crimes,” it’s that the charges lack merit.
There’s no doubt in my mind that Israel could have done more to alleviate the humanitarian crisis in Gaza, but it is indisputable that it has taken steps throughout the war to enable the flow of humanitarian aid into the enclave. And although Israel initially cut the Strip off from its water supply following the October 7 massacre, it quickly reversed course.
It is especially noteworthy that after ICC prosecutor Karim Khan announced he was pursuing charges in the spring, Israeli Attorney General Gali Baharav-Miara — who has had an adversarial relationship with the prime minister throughout his tenure — and State Attorney Amit Aisman held a joint press conference to make clear that, “The legal system in the State of Israel is prepared to examine any serious” charges, but that the ICC’s case is “without foundation.”
None of this apparently mattered to the court, which found a legal maneuver to weasel its way around the complementarity principle by arguing that, “The prosecution notified Israel of the initiation of an investigation in 2021” and “Israel elected not to pursue any request for deferral,” even though the warrant is for alleged crimes beginning Oct. 8, 2023.
Nor did it matter to the court that its jurisdiction over Israel and the Palestinian territories is questionable, at best.
In 2015, the Palestinian Authority announced it was accepting the jurisdiction of the ICC, no doubt hoping to use it as a tool to bludgeon Israel with. Despite the fact that the Palestinian territories are not a state and the PA had been kicked out of Gaza in a bloody coup years earlier, the court nevertheless accepted the “State of Palestine” as a party to the Rome Statute and almost immediately launched an investigation against Israel.
It thus gave itself the power to prosecute officials from a country that does not recognize its jurisdiction (Israel) on behalf of a government (the PA) that does not even control the territory in which the alleged crimes took place.
As for the clear war crimes perpetrated by Hamas on October 7, and its continued holding of civilian hostages, its leaders appear to be getting off scot-free: the ICC only issued a single warrant for a Hamas member, Mohammed Deif, and he’s already dead.
In practice, the ICC warrant likely won’t mean much for Netanyahu, as he’s unlikely to ever face trial. But it will prevent him from travelling to many of the 124 countries that are parties to the Rome Statute, as he could be subject to arrest. This could bar him from attending international conferences and may make it tricky to visit some of his key allies, like the United Kingdom and Germany.
In this regard, Thursday’s rulings were a clear win for Hamas and its Iranian backers: they succeeded in further isolating Israel on the world stage and using an international body to falsely accuse the Jewish state of perpetrating the most heinous of crimes.
This whole endeavour is a farce perpetrated by a kangaroo court that has lacked legitimacy right from the start — three of the five permanent members of the UN Security Council don’t even recognize its jurisdiction. Rather than prosecuting actual instances of genocide, as it was intended, the court has been weaponized by Israel’s enemies to persecute the country’s leaders for exercising their right to self-defence. The international community should not let this stand.
