ICC arrest warrants shock Netanyahu, but some say he will benefit

Published: 23 May 2024

Last updated: 23 May 2024

International Criminal Court (ICC) prosecutor Karim Khan's application to arrest Israeli Prime Minister Netanyahu, Defence Minister Gallant and Hamas chiefs in the name of war crimes and crimes against humanity have shaken Israel, raising concerns about severe repercussions for its international standing.

The application for warrants is considered historic in that it brings charges against a head of state who is supported by Western nations. All eyes were on Europe’s response as staunch supporters of the ICC.

Responses rush in

Many of Israel’s Western allies rushed to condemn the apparent equation between Israel’s democratically elected officials and the Palestinian terror group, but France said it supported the ICC, "its independence and the fight against impunity in every situation". It later clarified that the "simultaneous requests for arrest warrants should not create an equivalence between Hamas and Israel".

Norway became the first European country to publicly announce that it will arrest Netanyahu and Gallant if a warrant is ultimately issued by the Hague Tribunal and they land on its territory. At the other end of the spectrum, the Biden administration said it is willing to work with Congress to potentially impose sanctions against ICC officials over the prosecutor’s request.

In Australia, the response was more cautious with Prime Minister Albanese telling reporters on Tuesday he would not comment on "court processes globally [to] which Australia is not a party". DFAT outlined the government’s formal position, saying it "notes" Khan’s request and Australia "respects the ICC and the important role it has in upholding international law".

DFAT reiterated the general principle, like France, that "there is no equivalence between Israel and Hamas" and renewed calls for the immediate release of hostages. It added: "Any country under attack by Hamas would defend itself. And in defending itself, every country is bound by the same fundamental rules. Israel must comply with international humanitarian law".

Opposition leader Peter Dutton said the government had "squibbed" its response and should join the US in direct condemnation of the warrant requests. "It’s an abomination and it needs to be ceased. This action is antisemitic," Dutton said, adding that he was "very open" to the option of Australia cutting ties with the ICC, but said the government should first "put pressure on the ICC to make sure that they reverse this terrible decision".

There is no set time frame in which the pre-trial chamber must make its decision on the prosecution’s application, but it has previously acted with expediency, granting arrest warrants within about a month.

Political but not military

There was concern in Israel that IDF Chief of Staff Lt. Gen. Herzl Halevi and other senior generals would also be named, but so far at least, this has not happened. While the three Hamas targets represent both its political and military leadership, just Netanyahu and Gallant are mentioned in Israel's case.

There are no specific details regarding Israel's military attacks, and Khan emphasised that "Israel, like all states, has a right to take action to defend its population". However, he repeatedly mentions Israel's alleged use of "starvation as a method of war". The ultimate responsibility for this, in his mind, is that of politicians, not generals.

Commentators note that Netanyahu and Gallant will never go on trial. Even assuming the pre-trial chamber accepts the request for the arrest warrants, Israel is not a signatory to the Rome Statute, so as long as they don't travel to a country that is a signatory, they are safe from arrest. The ICC has no powers to arrest by itself.

Israeli legal officials, who are by no means card-carrying supporters of the government they serve, are convinced that if the case was to be heard before impartial judges, Israel could refute the allegations. But since there's no prospect of that case ever going forward, it is immaterial.

Credibility on the line

Many have long been convinced that Netanyahu is prolonging the war to buy time, waiting for a way to change the narrative. The ICC may have inadvertently given him that.

Netanyahu's domestic corruption trial in Israel has largely not hurt him politically. Instead, he has effectively spun it as a witch hunt, a misdirection that enough of the public has bought to keep him in power. With the ICC, Netanyahu should be able to convince most of the Israeli public that Israel is being singled out – an experience that could bolster his standing, as he spins himself as the leader of an unfairly besieged nation.

While the ICC is designed to mete out justice to individual criminals, not countries, Netanyahu is trying to claim that the entire State of Israel is on the defendant's bench. He is certainly taking pleasure in the wide support he has received from 106 Knesset members, and even from Biden, who surely doesn't want to be seen as a partner to alleged war crimes.

That may work for a short while, but this cannot be allowed to obscure what has happened in Gaza. Israel embarked on a justified war in the aftermath of October 7 – a war that, at first, had broad international support – but its mismanagement has transformed Israel into a global pariah that in the eyes of the world is on the same level as Hamas.

The ICC also stands to lose. Only established in 2002, the court’s exact role in the landscape of international intervention remains ill-defined. In more than two decades, it has only issued 46 warrants, 21 of which led to arrests, with only a handful of successful prosecutions. It also does not include some major pillars of the world order, including the US, India, China, Russia, Turkey and Israel itself.

To those who already doubt the ICC’s jurisdiction, Khan’s breaking of norms risks suggesting that he is trying to pressure judges to agree to his demand. No matter what their next move is, to many sceptical observers, the court will have already lost any claim to credibility.

That’s especially true because the court has, in the past, avoided indicting Islamic fundamentalist terrorists from the Middle East. The fact that Hamas leaders are included in Khan’s call will help, but it will be easy for doubters to say that Israel is being held to a double standard: After all, the Islamic State, Hezbollah and al-Qaida have all somehow escaped scrutiny, and while the court is believed to have investigated the Taliban for decades, no indictment has materialised.

The role of the Israeli court

Khan said on Tuesday he had recommended issuing arrest warrants for Netanyahu and Gallant because he had not seen compelling evidence that Israeli courts were probing alleged violations of international law in Gaza.

"Despite significant efforts by the prosecutor’s office, he did not receive information from Israel that proves genuine legal processes are taking place to check or investigate the stated crimes,”" Khan’s office said.

By virtue of the ICC’s charter, and the principle of complementarity, the court cannot hold trials for nationals of countries that have independent judiciaries that are able and willing to conduct investigations and legal proceedings into the purported crimes the court is concerned with.

The two most senior law enforcement officials in Israel, Attorney General Gali Baharav-Miara and State Attorney Amit Aisman, said their agencies examine all claims of violations of the law, and asserted that the ICC therefore has no right or authority to investigate and charge Israeli officials.

Haaretz Editor-in-Chief Aluf Benn urged that "an Israeli state commission of inquiry should be convened to examine whether the population of Gaza was deliberately starved and whether the IDF deliberately attacked and killed Palestinian civilians".

Israel would need to fulfil the "principle of complementarity" which would obviate the need for the ICC's investigation and the arrest warrants. It would also provide the Israeli public with an answer to the most disturbing question of all – whether the country is being led by someone who has committed crimes against humanity.

Day after backing ICC, France says there’s no comparison between Israel and Hamas (Times of Israel)

Norway says it is ready to arrest Netanyahu and Gallant (Ynet)

The ICC will consider arrest warrants for Israeli and Hamas leaders. How has Australia responded? (Guardian)

Blinken willing to work with Congress on potential sanctions against ICC (Guardian)

What the ICC arrest warrants mean for Israel and Hamas (BBC)

Who is ICC chief prosecutor Karim Khan, and why is he out to get Israel? (Ynet)

Thanks to Netanyahu, the ICC's equivalence between Israel and Hamas will go global (Anshel Pfeffer, Haaretz)

AG, state attorney: ‘No foundation’ to ICC prosecutor’s bid to arrest Israeli leaders (Times of Israel)

Trying to arrest Netanyahu could actually make him more powerful (Dan Perry, The Forward)

ICC prosecutor claims no evidence Israeli courts are probing alleged crimes in Gaza (Times of Israel)

Jerusalem, not The Hague: Israel must investigate Netanyahu for crimes against humanity in Gaza (Aluf Benn, Haaretz)

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