Netanyahu had a clear path to avoid ICC arrest warrants. He chose not to take it

There has been uproar in the Jewish world about the accusations of the International Criminal Court (ICC) which have been levelled at Israel and its call for the arrests of Benjamin Netanyahu and Yoav Gallant.

The ICC was established in 2002 on the basis of the Rome Statute four years earlier. Its role was to make a ruling on a state’s practices if there was no independent domestic court to carry out this legal task. The ICC often operated when third world dictatorships refused to act or put forward compliant judges who simply followed orders. The United Kingdom and Australia are two of the 123 countries which were signatories to the Rome Statute which established the ICC.

Israel and the United States, however, refused to sign, as did the entire Arab world, with the exception of Jordan and Tunisia. The ICC further added “the State of Palestine” as a signatory in 2015 and “the crime of aggression” in 2017. Many subsequently argued that the state of Palestine did not actually exist.

The outcome of the ICC’s ruling means that if Netanyahu decides to visit any of these 123 countries, he is liable to be apprehended. This was the reason why Vladimir Putin, a fellow accused, did not dare visit South Africa some months ago.

Several European countries such as Belgium, Ireland, Slovenia and the Netherlands appeared to be eager to comply with the ICC. In London, the signal from Downing Street was vague if not non-committal. It symbolised the dilemma for the British prime minister, Sir Keir Starmer who, on the one hand is a former Director of Public Prosecutions who has defended the rule of law, but on the other hand is a defender of the state of Israel but a critic of its government.

The Australian government, under Anthony Albanese, responded in a similar fashion, with Foreign Minister Penny Wong saying Australia “respects the independence of the ICC and its important role in upholding international law", while not commenting specifically on the arrest warrants.

While there were many flaws and double standards in the ICC’s non-binding judgement, it does ask the fundamental question as to whether the government of Israel in its actions in the war in Gaza has obeyed the rule of law.

In particular, the ICC stated that between  October 8, 2023, and May 20, 2024, aid was impeded “in violation of international humanitarian law” and noted Netanyahu’s failure “to facilitate relief by all means at its disposal”. Last week, the number of aid trucks had dropped from 3,352 in August to 1,298 last month, the Christian Science Monitor reported.

The ICC further argued that it was only pressure from the United States and the international community in general that alleviated the situation. It commented that “the increases in humanitarian assistance were not sufficient to improve the population’s access to essential goods”. The ICC issued its report after President Biden’s 30-day deadline to improve the situation had passed.

The Rome Statute’s preamble states that the ICC “shall be complementary to national criminal jurisdictions”, and under the principle of complementarity only has distinction if a state is “unwilling or unable to genuinely carry out the investigation or prosecution”.

Last May, there existed the possibility that Netanyahu could have authorised an independent Israeli judicial investigation into these claims of using food as a weapon of war. An inquiry would have undermined the ICC’s raison d’etre and its array of accusations in this area – and quite possibly have halted the issuing of arrest warrants. Instead, Netanyahu and his government swatted away any proposal for a state commission of inquiry.

Dr Eran Shamir-Borer who had headed the IDF’s international law department, noted in Haaretz last week that “the state did nothing. It buried its head in the sand”. He further commented that “while the ICC’s action was outrageous in many senses, the state's conduct contributed to the decision”.

So why did Netanyahu refuse to take this path – in essence an escape route out of the current quagmire?

From Netanyahu’s point of view, he would not abandon his assault on an independent judiciary in Israel and the rule of law – characterised by the “judicial reform” mass protests of 2023. And what would happen if the inquiry came up with the “wrong” verdict – i.e. a finding that the rate at which food and medical supplies were entering Gaza was inadequate?

Moreover, it would, in turn, have drawn public attention once more to the fact that the pogrom of October 7 took place on his watch.

It would have highlighted the moonscape of destruction in parts of Gaza to an Israeli audience. International media shows this, day-in, day-out, virtually on cue, however Israeli television rarely does so.

A difficult outcome for Netanyahu would have challenged his demand for “total victory”. It would have strengthened the demand of the hostages’ families that constructive negotiations take place to secure a ceasefire in Gaza and the safe return of the hostages to Israel – and that this should be the priority of the government.

All this posed a risk for a desperate Netanyahu who was keen to avoid the collapse of his government if there was an agreement. It further followed that the disintegration of his coalition would halt Netanyahu’s ability to thwart the verdict in his trial on charges of breach of trust, accepting bribes and fraud.

Netanyahu has already attempted to secure both the postponement of the trial and immunity from prosecution but the Attorney-General, Gali Baharav-Miara, has refused to capitulate despite a public campaign of intimidation and protests outside her home. Netanyahu is due to appear in court on December 2.

Netanyahu’s defence against the ICC’s ruling has been to accuse its three judges of antisemitism and to paint himself as the central victim in a 21st-century version of the Dreyfus Affair.  This is in the same genre of epithets that Netanyahu used against Yitzhak Rabin 30 years ago in comparing him to Neville Chamberlain and depicting the Oslo agreement with Arafat as a new version of the 1938 Munich Agreement with Hitler.

Netanyahu prides himself on his interest in Jewish history – his father was a great historian of the Spanish Inquisition. He knows that the Agranat Commission of Inquiry in 1974 about the Yom Kippur war led to the resignations of Golda Meir and Moshe Dayan. He will further recall that the Kahan Commission of Inquiry in 1983 about the Lebanon war led ultimately to the resignation of Menahem Begin and the demotion of Ariel Sharon.

In Netanyahu’s eyes, a public, uncontrolled commission of inquiry by independent judges is a slippery slope upon which he clearly does not wish to walk.

The silence of the leadership of Diaspora communities assists him in this desire. It is a corrupting phenomenon which demeans Jewish values. Back in 1982, the Kahan Commission was only established after the intervention of President Yitzhak Navon – and the agreement of Menahem Begin, who respected the rule of law. This allowed many Diaspora organisations (such as the Board of Deputies of British Jews) to support Navon’s suggestion.

President Herzog has yet to intervene decisively in this imbroglio. As a former leader of the Labour party – and not Netanyahu’s choice for president – he is well-placed to give voice to the despair of the Jewish world in 2024.

It should also be recalled that Israelis who had wholeheartedly supported the invasion of Lebanon in the summer of 1982 gradually began to realise that they had been duped and looked back on the conflict as a divisive catastrophe.

The alternative scenario in this drama is that Donald Trump will come to Netanyahu’s rescue. Trump's incoming US national security adviser, Michael Waltz, commented last week that there will be “a strong response to the antisemitic bias of the ICC and UN come January”.

Yet the unpredictable Trump refused to allow Israel to annex part of the West Bank, out of which the Abraham Accords of 2020 were born. He also fell out with Netanyahu when the latter congratulated Joe Biden on his election as president – thereby implying that it had been a free and fair process. Amidst the impending chaos of Trump’s second coming, it is impossible to fathom the shape of things to come.

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