Israeli officials are concerned that the U.N.’s top criminal court could issue arrest warrants for its top military and political leaders on suspicion of war crimes. Some reports suggest that Prime Minister Benjamin Netanyahu could be among them.
The International Criminal Court (ICC) has been investigating Israel’s actions in the occupied territories for the past three years and, more recently, also the actions of the Palestinian group Hamas.
It has the power to charge and try people for crimes under international law.
In the past it has issued arrest warrants against leaders such as Russian President Vladimir Putin, Libyan President Muammar Gaddafi, and military personnel such as Ugandan Joseph Kony.
Netanyahu has called the prospect of top Israeli figures joining the ICC’s wanted list “an outrage of historic proportions,” accusing the court of trying to paralyze his country’s ability to defend itself.
The fact that he has chosen to make public comments on this matter suggests that, behind the scenes, the issue is being actively discussed.
A clear message
While the ICC has not confirmed anything, when chief prosecutor Karim Khan visited Israel and the occupied West Bank last December, his message was clear.
The British lawyer toured the sites of Hamas attacks on Israeli villages near the Gaza fence on October 7.
He also met with political leaders and traveled to Ramallah to speak with families of Palestinian victims about their experiences in Gaza and the West Bank.
Khan condemned the violence suffered by civilians on both sides and promised to investigate the events.
“All actors must respect international humanitarian law,” he clarified in a statement at the time. “If you don’t, don’t complain when my office has to act.”
Khan said the October 7 attacks – in which Hamas-led gunmen killed some 1,200 people, mostly civilians, and took 253 hostages – represent “some of the most serious international crimes that shock the conscience of humanity.” , crimes that the ICC was created to address.”
In the case of Israel, he highlighted the obligation to carry out its military operation in Gaza according to “clear legal parameters that govern armed conflicts.”
Israel has been accused of failing to protect civilians during bombing in Gaza, although it insists it is taking all necessary measures to avoid casualties.
The Hamas-run Palestinian territory’s Health Ministry says more than 34,500 people have died there since the war began, and many were children and women.
Khan also stressed the need for humanitarian aid to reach Gaza, with access to food, water and medical supplies a basic right for civilians “without further delay, and at pace and scale.”
He also urged Hamas not to divert or misuse supplies when they arrived, after accusations from Israel that its members were looting trucks and stealing aid, preventing it from reaching the general population.
ICC jurisdiction
Israel is not a member of the ICC and says the court has no jurisdiction over the country.
But the court has ruled that since 2015 it does have jurisdiction over the West Bank, East Jerusalem and Gaza after the Palestinians ratified their founding treaty, the Rome Statute, as the State of Palestine.
No Western-style democracy has ever received an ICC arrest warrant against any of its leaders before. If it happens to Netanyahu, he will be the first. Israelis are particularly concerned about the stigma and possible isolation it would entail.
Michael Oren was Israel’s ambassador to the United States from 2009 to 2013.
In an interview with the BBC, he spoke about the recent case presented by South Africa before the International Court of Justice (ICJ), in which it accused Israel of genocide against the Palestinian population in Gaza, an accusation that the country rejects.
In January, the court issued a provisional ruling ordering Israel to take steps to prevent genocidal acts in Gaza, but stopped short of telling it to stop its military offensive.
“Israel emerged relatively unscathed from those procedures, but the fact that they were carried out meant that Israel had lost the battle,” he told the BBC.
“They should not have stopped at that at all, and it is certainly a blow to our international standing and our security. Because a country whose leaders are accused of war crimes is more vulnerable.”
Affects both parties to the conflict
Geoffrey Nice, another British lawyer, led the prosecution of former Serbian president Slobodan Milosevic for war crimes at the International Criminal Tribunal for the former Yugoslavia.
He points out that the actions of both parties in this conflict are within the focus of attention of the ICC.
“Any investigation will not only affect the Israel Defense Forces and the political and military leaders of that country, but also Hamas,” he told the BBC.
He also addressed suggestions that the ICC could be under political pressure to reconsider its decision-making.
“Governments around the world, particularly large and powerful governments, are there to protect the interests of their countries.
“So, if they see that a trial or an investigation is approaching… that would cause them as a country great damage to their reputation, and if they consider that they can interfere with the trial or the investigation processes to save themselves from that damage to their reputation, then “They will do it, because they are acting in the interest of their country.”
The time frame for issuing orders can vary, with weeks or even months sometimes passing between the time the ICC prosecutor requests it and the judges grant it.
Sometimes details can be kept confidential if it is felt that making them public would decrease the chance of an arrest.
Such a move against Netanyahu, his political associates or Israeli military commanders would also have practical implications.
It would affect their ability to travel, since Rome Statute nations are required to hand over people with arrest warrants against them.
However, some of those nations have ignored ICC orders in recent years.
Former Israeli ambassador Michael Oren believes the ultimate impact would be much broader and would change the narrative of Israeli society.
“In general, [la sociedad israelí] responds to love. Does not respond to aggression. “If you want to get concessions from the Israelis, don’t hit them over the head, hug them,” he said.
“All of these measures tend to move the political needle in this country to the right and not the other way around. “It would have a boomerang effect, and instead of opening paths to a possible diplomatic process, it will probably close them.”
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