Aa
  • Read, Watch, Listen
  • TJI Series
  • Community Action
  • Events
  • Zedi
Follow us and continue the conversation
  • LinkedIn
  • Instagram
  • FaceBook
  • X
  • YouTube
Test yourself with the TJI Quiz!

Adjust size of text

Aa

Follow us and continue the conversation

  • LinkedIn
  • Instagram
  • FaceBook
  • X
  • YouTube

Your saved articles

You haven't saved any articles

What are you looking for?

Original reporting, insightful analysis and diverse views, delivered straight to your inbox

  • LinkedIn
  • Instagram
  • FaceBook
  • X
  • YouTube
Your support fuels our mission to inform, entertain and inspire.

The Jewish Independent is bound by the Standards of Practice of the Australian Press Council. If you believe the Standards may have been breached, you may approach The Jewish Independent or make a complaint to the Australian Press Council in writing at www.presscouncil.org.au. The Council may also be contacted on 1800 025 712.

  • Our Story
  • Contact us
  • Our Team
  • Support us
  • Guidelines
  • Pitch your idea
  • Republishing us
  • Community Action
  • Our Awards
  • LinkedIn
  • Instagram
  • FaceBook
  • X
  • YouTube
Aboriginal FlagTorres Strait Islanders Flag

The Jewish Independent acknowledges Aboriginal and Torres Strait Islander peoples as the Traditional Owners and Custodians of Country throughout Australia. We pay our respects to Elders past and present, and strive to honour their rich history of storytelling in our work and mission.

© The Jewish Independent 2026All Rights Reserved
Website design and development by Your Creative, MelbourneTerms & ConditionsPrivacy Policy
HomeRead, Watch, ListenIsrael
OpinionIsrael

A dismissal of the ICC arrest warrants is a dismissal of international law

The warrants against Netanyahu and Gallant are valid. They do not discriminate against Israel, embolden terrorism, or assess the justice of Israel’s war against Hamas.
Michelle Lesh
Print this
Israeli Prime Minister Benjamin Netanyahu, left, and Defense Minister Yoav Gallant attend a press conference

Israeli Prime Minister Benjamin Netanyahu, left, and Defense Minister Yoav Gallant attend a press conference in the Kirya military base in Tel Aviv, Israel, Saturday, Oct. 28, 2023 (Abir Sultan/Pool Photo via AP, File).

Published: 28 November 2024

Last updated: 1 December 2024

The arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant mark a dramatic development at a dark time for Israel, the diaspora and the international community.

It has understandably ignited a range of intense reactions, including misplaced rage and disdain towards the legal institution that issued the warrants. They have, without sufficient justification, attempted to undermine trust in the integrity of the International Criminal Court’s (ICC) decision.

A charge against individuals, not Israel

A charge against individuals, not Israel

On 21 November 2024, the ICC’s Pre-Trial Chamber (PTC) issued arrest warrants for Netanyahu and Gallant for crimes committed from 8 October 2023, in the ongoing investigation into ‘the situation of Palestine’ by the Prosecutor, Karim Khan.

The three-judge panel found that the threshold of ‘reasonable grounds to believe’ was satisfied for the two senior Israeli government officials in bearing criminal responsibility for the war crime of starvation as a method of warfare, and of directing attacks against the civilian population (without specifying which attacks); and the crime against humanity of murder, persecution, and other inhumane acts.

I know of no credible evidence that the judges were incompetent, corrupt or that they demonstrated political bias. There is, therefore, no evidence that provides good reason to doubt the integrity of their decision. Eminent international lawyers have supported the Prosecutors application and accepted the PTC’s decision. As one expressed: the decision ‘is not surprising’ and ‘it would have been shocking had it found no reasonable grounds to issue warrants for at least some charges, given the obvious and continuing failures to minimize civilian harm and suffering.’

The ICC deals with individual criminal responsibility. That should make clear the important distinction between judgment of a government and judgment of a country. Israel is not in the dock: the prime minster and the former defence minister are.

Israeli historian and public intellectual Fania Oz-Salzberger, has asked diaspora Jewry to choose Israeli civil society over Netanyahu.

Is Netanyahu now a fugitive?

The ICC has no police force and must rely on states to assist with arrests. All 124 states parties to the Rome Statute – including the UK, Australia and most of Europe, but not the US – are obligated to co-operate in the arrest and surrender of people found in their territory who are wanted by the Court.

Some states have ignored their obligation to hand over the two other heads of states who are wanted by the ICC. In 2015, South Africa failed to arrest Sudan’s President Omar al-Bashir, resulting in threats by South Africa to withdraw from the Court. Mongolia failed to arrest Russia’s President Vladimir Putin during his visit in September this year. Perceptions of customary international law on head of state immunity may, but should not, complicate things further.

The arrest warrants potentially will place further strains on states’ respect for international criminal justice. State reactions have varied. The United States labelled the warrants against Netanyahu and Gallant as outrageous despite welcoming the warrant against Putin. South Africa has welcomed the warrants in the situation of Palestine despite its refusal to extradite al-Bashir.

This kind of inconsistency will expose any reference to a ‘rules-based order’ as insincerity at best and politically motivated hypocrisy at worst. As the European Union’s top diplomat, Joseph Borrell, stated: "We cannot pretend to hold a rule based international order and not implement the decision of the International Criminal Court. We cannot pick and choose the decisions we like and those we do not like. And we must ensure that the ICC is able to function without the impediment of any third party and without threats and intimidation."

States who refuse to arrest suspects are derogating their responsibility under international law and in doing so will lose their authority to criticise other countries’ conduct.

Israel’s failure to investigate itself

A common refrain in response to the decision is that it is the first time that the ICC has issued warrants against officials from a democratic country. This is perplexing because it appears to assume that democracies do not violate the laws of war or if they do, they should be permitted to do so.

The only reason that democracies may justifiably appear less often before the Court is if they have institutions that can justifiably be trusted to investigate allegations made against their leaders and armed forces.

Israel was  invited by the Prosecutor to investigate. Had it done so, the warrants might not have been issued. That would also be true if the Israeli leadership had made greater effort to improve the dire humanitarian situation rather than deliberately obstructing and politicising it.

Unfortunately, Israel’s record of investigating does not instil confidence in the prospect for achieving accountability. That is my assessment from working in the area of accountability on the Turkel Commission and beyond. The Turkel Commission reviewed Israel’s military justice system and presented the government with recommendations. While significant improvements were made to the mechanisms, these regrettably did not result in greater accountability for alleged violations that occurred during wars in Gaza since 2012.

Netanyahu has refused to set up a commission of inquiry into October 7 and the events that followed in Gaza, including the allegations raised by the Prosecutor. He has even proposed legislation to ban it. The military’s approach to investigations seems to be in keeping with its poor record. It has been reported that of the incidents being investigated where there is a reasonable suspicion of an alleged violation, the IDF has brought to trial 15 soldiers, mostly concerning theft and arms trading. The apparent reason for refraining from making decisions on serious cases involving deaths is due to concerns over public criticism.

Democracies are not immune from international accountability. The national institutions that undertake investigations need to be trusted. Israel is now a fragile democracy. That was made evident by demonstrations into judicial overhaul before the war. Recent measures and threats against the press, the attorney general and the head of the military and Shin Bet have made things worse.

A war crime is a war crime

Israel’s right to defend itself in response to the massacres that were perpetrated against its citizens on October 7 are irrelevant to the legitimacy of the arrest warrants.

Defensive wars do not absolve a country from fighting according to the laws of war. Having a just cause for war is separate from the rules that govern the conduct of hostilities, which apply always to all parties to the conflict.

Both Hamas and other Palestinian fighters, and members of the IDF are subject to the same rules once the conflict begins. “A war crime is a war crime, is a war crime.”

Relatedly, the criticism that the Prosecutor’s application included Hamas leaders Ismail Haniyeh, Yahya Sinwar and Mohammed Diab Ibrahim Al -Masri (also known as ‘Deif’) expressed a judgment of moral equivalence between members of a terrorist group and officials of a democratic state, is unfounded. The judgment is not about the morality of Israel’s or Hamas’ conduct. It is about accountability of both parties under law. The same law must apply to all parties in a conflict.

The applications for the arrest of Haniyeh and Sinwar were withdrawn when they were confirmed dead. However, the Court decided to issue a warrant against Deif because his death has not yet been confirmed even though it is claimed that he was killed in an Israeli airstrike.

The issuing of these warrants will not embolden further non-state actors whose tactics are known to exploit the urban population from within which they fight and seek cover. They will act regardless of what the ICC does. But if the warrants are withdrawn for reasons that are understandably seen in the Global South as Eurocentric political pressure, the resort to terror is likely to increase.

We need international law more than ever

If it is possible to take a breath after the blow to the gut from the idea that the longest serving prime minister in Israel’s history has been hauled before the international court for conduct in a defensive war, then that breath might bring into vision the cost of losing respect for international law.  We need international law to help us out of the abyss. Treating the arrest warrants and the ICC with contempt undermines international law when we need it most.  

RELATED STORIES

Hamas calls for Gaza ceasefire as Lebanon truce takes key ally Hezbollah out of fight (Times of Israel)
Gaza terror group says it’s ready for ‘serious deal,’ blames Israel for lack of progress; Ben Gvir tells hostage mother he’ll block agreement that entails release of ‘1,000 Sinwars’.

Within a month, the Israeli army has destroyed what remained of Gaza's education system (Haaretz)
Dozens of schools in northern Gaza — many of them used as displaced persons' camps — were targeted in a large wave of attacks. The UN says dozens of people were killed in these strikes. The IDF says the 18 incidents cited by Haaretz are out of the ordinary, and will investigate any suspected violations of international law.

You might also like
  • Fighting for a better Israel 
    Peter Kohn
  • Where are the women in this election campaign?
    Eetta Prince-Gibson
  • Record spike in settler violence ahead of election
    Ben Lynfield
logomark.67a07ee3
We believe in the free flow of information

Republish our articles for free, online or in print, by using our Creative Commons licence

You might also like

    shahar nevo east jerusalem
    AnalysisIsrael

    Terror plot to kill hundreds of Arab Israelis thwarted

    Ben Lynfield
    TOPSHOT-ISRAEL-POLITICS-ELECTION
    Israel Votes 2026ExplainerIsrael

    Your Israel election cheat sheet

    Deborah Stone
    election maze copy 3
    Israel Votes 2026ExplainerIsrael

    There are three likely outcomes in Israel’s election. None is simple

    Sharon Offenberger 1

About the author

Michelle Lesh

Michelle Lesh

Dr Michelle Lesh is a Senior Fellow, Melbourne Law School.

More from the author

FeatureArts & Culture

The pictures that accompanied Mark Baker’s words

ReflectionArts & Culture

On Mark and A Season of Death

OpinionIsrael

My sense of collective and personal belonging has been shaken