The International Criminal Court Issues Arrest Warrants Against Prime Minister Netanyahu and Former Defense Minister Yoav Gallant
The ICC's unprecedented arrest warrants against leaders of a democratic state carry severe and far-reaching consequences, yet Israel still has far-reaching options to mitigate the damage.
Photo by iStock/Chaim Goldberg/Flash90
The International Criminal Court (ICC) in The Hague found that it has reasonable grounds to believe that Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant had committed the war crime of starvation as a method of warfare, alongside crimes against humanity including murder, persecution, and other inhumane acts, and bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population. These unprecedented arrest warrants against the leaders of a democratic state carry potential severe and far-reaching consequences, yet Israel still has options to mitigate the damage.
On November 21, 2024 The judges of the International Criminal Court (ICC) issued four decision regarding the "Situation in Palestine.," In the first decision they rejected as premature Israel's challenge to the jurisdiction of the court. In the second decision they rejected Israel's claim that it should have been given a notice of the impending arrest warrants and given a chance to declare that it would investigate the allegations itself. In the third decision, the court decided to issue arrest warrants against Prime Minister Netanyahu and Former Defense Minister Gallant. In the fourth decision the court issued an arrest warrant against Muhamad Def, a Hamas leader, who Israel claims is already dead.
Only the first two decisions (the "procedural" decisions) were made public. The decisions on the arrest warrants themselves are confidential, with the court issuing a "summary" of the decisions with some details.
Both of the procedural decisions are problematic. In the first decision, the court effectively skipped over Israel's main claim - that even if there were a "State of Palestine," this state cannot delegate to the court the authority to criminally adjudicate Israeli citizens, an authority the Palestinian Authority does not possess according to the Oslo Accords. This issue, it should be noted, was also raised before the court by several states and academics, including by IDI researchers Prof. Yuval Shany and Prof. Amichai Cohen, in briefs submitted to the court as "friends of the court."
In the second decision, the court bypassed the essential requirement of allowing the relevant state precedence in investigating allegations, a requirement which is at the core of the principles guiding the ICC. In effect, the arrest warrants were issued before Israel had a fair chance to review the evidence that the ICC Prosecutor gathered and decide whether it wanted to investigate the allegations itself.
Indeed, on November 26, Israel filed with the ICC a "notice of appeal" of the decisions. The Appeals Chamber of the ICC will discuss these appeals in due course.
As mentioned, in addition to the procedural decisions, the court issued arrest warrants against Prime Minister Netanyahu and former Defense Minister Gallant. These were issued on suspicion that they are responsible for committing a series of war crimes and crimes against humanity over the course of the war in Gaza. These alleged offenses include the deliberate starvation of civilians by preventing the supply of sufficient quantities of food, water, medicine, medical equipment, fuel, and electricity, without there being any clear military need, as well as intentional attacks against the civilian population. This marks the first time in the history of the ICC that arrest warrants have been issued against leaders of a democratic nation—a development of grave significance for Israel.
As noted, the arrest warrants themselves are secret, and so is the request submitted by the ICC Prosecutor on May 20, 2024, to issue such warrants. Thus, it is not easy to gather from the statement issued by the court the evidence the Prosecutor presented in order to support these serious allegations. As noted in previous articles by IDI experts, the allegations made by the Prosecutor here are based on a dubious legal and factual basis.
Regardless of our criticism of the decision of the court, we must be realistic about its implications. Over 120 member states of the ICC, including important allies of Israel and numerous other countries with which Israel maintains close diplomatic relations, are obligated to enforce these warrants. Should Netanyahu or Gallant enter their territory, they would be required to arrest them and extradite them to the ICC. Granted, several countries such as France publicly declared that they would respect Netanyahu's international immunity as an acting Head of State. Yet, these statements do not obligate the respective national courts. Netanyahu will likely not take the risk of travelling to these countries, and at any rate, these statements could be relevant only as long as Netanyahu remains in office, and do not apply to Gallant.
Moreover, the arrest warrants that have already been issued may only be the beginning. The criminal investigation by the ICC into the Gaza conflict and incidents in the West Bank continues to progress, and there is a real risk that the ICC Prosecutor will proceed with issuing additional arrest warrants, including against IDF commanders and other political figures in Israel.
The arrest warrants also have the potential to bolster political and legal actions against Israel and its representatives in various countries. These actions could range from further restrictions on arms sales to Israel, to criminal proceedings and civil lawsuits against government officials, IDF commanders, and soldiers, to boycotts and cancellations of various collaborations in economic, cultural, and scientific domains.
Moreover, these warrants may adversely impact Israel’s relations with the United Nations, as senior UN officials are likely to avoid contacting or meeting with individuals against whom an ICC arrest warrant has been issued.
In addition to the appeals that have already been submitted by Israel with respect to the procedural decisions, Israel is entitled to resubmit its challenge arguing that the ICC lacks jurisdiction over the Israeli-Palestinian conflict. Additionally, Israel has the right to invoke the principle of “complementarity,” that is, to prove to the ICC that allegations against Netanyahu and Gallant are being investigated domestically, thereby compelling the ICC to suspend its arrest warrants.
However, to successfully argue complementarity, Israel must do what it has, thus far, not done: investigate the allegations and do so in a process that is independent, rapid, and effective. Establishing a state commission of inquiry whose findings could lead to criminal proceedings, or launching immediate criminal investigations, are among the primary tools available to Israel. A politically motivated investigation committee, or another investigative process that is not perceived as professional and independent, will certainly not be helpful.
It is also important that Israel work with its allies to point out the flaws and mistakes in the ICC's decision and try to enlist them for support. Criticism of the ICC’s actions is legitimate and necessary, but it is worth being careful to avoid launching a major attack or delegitimization campaign against the entire institution and its judges. Such moves will certainly not be helpful against the ICC, and may also make it difficult for other countries, who value the ICC, to help us.
Now, more than ever, it is important to note that Israel undertakes immense efforts to abide by the requirements of international law in the terrible war which was forced on it by Hamas and Hezbollah terrorist organizations. Israel's efforts are based on its moral and democratic identity, and not from external pressure. Israel should therefore reject policies that might violate international law. In addition to these considerations, it is also important for Israel to act wisely to reduce the risk of additional arrest warrants. The criminal investigation at the Court concerning the war in Gaza and activities in the West Bank continues to progress, and the arrest warrants already issued may only be the opening shot. Exercising caution in adopting controversial policies and operational conduct that could be interpreted as violations of the law of armed conflict (including aspects of humanitarian aid to civilians); avoiding irresponsible statements by politicians and commanders that could be interpreted as indicating intent to commit crimes; and conducting independent investigations into credible allegations of violations of the law—these are the essential tools for Israel to avoid further deterioration down the path on which we currently find ourselves.
There is a possible connection between the severe risks to Israel stemming from The Hague and the government's ongoing efforts to undermine judicial and democratic institutions in Jerusalem. How will we succeed in convincing the ICC and other courts around the world that Israel is committed and capable of investigating allegations of violations of the law when our public representatives themselves do not respect the Israeli judicial system or, particularly, the Attorney General, who heads the law enforcement system?
The State of Israel has professional and independent judicial and legal systems. Protecting them as such is vital for us to effectively defend IDF soldiers, commanders, and the political leadership from the legal threats emerging in The Hague and other capitals around the world. We must not abandon them.