What is the potential fallout from the ICC’s seeking arrests of Israeli PM Netanyahu, DM Gallant?

Less than a month after Israeli officials first warned that the International Criminal Court (ICC) might target Israeli leaders and started a campaign to prevent it, ICC Chief Prosecutor Karim Khan took unexpected action and caught Israel off guard on Monday.

Khan announced he was seeking arrest warrants for Hamas leaders Yahya Sinwar, Mohammad Deif, and political leader Ismail Haniyeh – and also for Israeli leaders Benjamin Netanyahu and Yoav Gallant.

Prime Minister Netanyahu and Defense Minister Gallant were charged with the starvation of civilians, extermination, willful killing, intentionally directing attacks against civilians, persecution, and other inhumane acts, amounting to war crimes and crimes against humanity, but not genocide.

A panel of three judges will now consider Khan’s application for the arrest warrants in a pre-trial to determine if there is sufficient evidence to proceed.

This process could take anywhere from weeks to months, but requests for arrest warrants by the chief prosecutor have, in the past, mostly been approved.

This historic announcement by Khan is the first time a Western leader has been charged by the ICC, with Netanyahu and Gallant now joining the ranks of murderers like former Sudanese despot, Omar al-Bashir, the Libyan dictator Muammar Gaddafi and Russian autocrat Vladimir Putin.

Before looking at the potential fallout for Israel, it’s important to understand that the authority of the ICC rests on the Rome Statutes, which were ratified by European Union states and nations like Australia, Brazil, Britain, Canada, Japan, Mexico, and Switzerland, as well as several African and Pacific states – but not by the U.S., Russia, China, India, and Israel.

Crucially, the ICC admitted the “State of Palestine” as a member in a controversial and legally dubious move, in effect granting itself the authority to investigate alleged crimes in the areas of Judea and Samaria, as well as the Gaza Strip.

In principle, the Rome Statute only grants the ICC the authority to prosecute individuals from states that are unable or unwilling to prosecute the alleged crimes themselves.

This may be one of the reasons that only Netanyahu and Gallant, but no IDF officers, were accused, as the IDF is in the midst of a broad investigation of its own failures and is generally known to prosecute its own wrongdoings.

There is no investigation being pursued in Israel against Netanyahu and Gallant at the moment which, in the eyes of prosecutor Khan, may have opened the opportunity for the ICC to step in.

If the arrest warrants are granted, ICC member states will be required to detain Netanyahu and Gallant as soon as they enter their territory.

Russian President Vladimir Putin canceled a planned trip to South Africa in 2023 to avoid forcing the country to make this fateful decision after the ICC issued a similar warrant against him. On the other hand, several African countries defied the ICC’s warrants against Sudan’s al-Bashir and didn’t arrest him.

Israeli leaders across the political spectrum have reacted with outrage, with Gallant emphasizing that the ICC has no jurisdiction over Israel. However, no practical steps have been declared except for the creation of a “special command center” in the Foreign Ministry.

Several Israeli legal experts counseled the government to take strong measures against the court, including complete non-cooperation.

“It’s perfectly fair given the ICC is threatening Israelis with false imprisonment and false prosecution, that it’s actively collaborating with a terrorist organization in lawfare against Israel,” Avi Bell, professor of law at the University of San Diego and Bar-Ilan University in Ramat Gan told the Jewish News Syndicate (JNS).

In this context, he also slammed Israel’s government for cooperating with the ICC and even allowing Khan to visit the country last December.

Another potential move could be to pass a law modeled after the U.S. Armed Service Members’ Protection Act (ASPA), which bars any cooperation and allows the U.S. to implement any measures necessary to protect its officials, including military action to liberate arrested individuals.

Eugene Kontorovich, head of the International Law Department at the Kohelet Policy Forum told JNS that Israel should consider similar steps. He also called for the Biden administration to reinstate the sanctions imposed by former U.S. President Donald Trump in 2020 when the court considered opening an investigation into alleged U.S. war crimes in Afghanistan.

At the time, the U.S. targeted personal assets and banned the entry of ICC officials and their families. “The ICC bureaucrats want Israel to fight Hamas with both hands tied behind its back, but personally they are cowards,” Kontorovich said.

While it remains to be seen if the arrest warrants will, indeed, be issued, and if EU countries will detain Gallant and Netanyahu if they enter their territory, the damage to Israel's public relations is immediate, immense, and irreversible.

The statement by prosecutor Khan put the democratically elected leaders of Israel on the same level as murderous Hamas terrorists and accused them of horrific crimes.

As Netanyahu noted, international bodies like the ICC were created after World War II to prevent future genocides following the Holocaust. This implicitly compares Israel to genocidal regimes, even Nazi Germany.

Effectively branding Israeli leaders as war criminals “will pour jet fuel on the fires of antisemitism,” Netanyahu added.

The accusation also provides further ammunition for those around the world seeking to demonize and delegitimize the Jewish state, as it is fighting an existential war.

The ICC’s move against Israel comes amid an ongoing crisis of legitimacy experienced by many international institutions, most recently exemplified by the laughable case of “genocide” brought forward against Israel at the International Court of Justice, or the minute of silence observed by the UN Security Council for the “Butcher of Tehran.”

All of this threatens to finally destroy worldwide confidence in the integrity and the authority of international institutions that are not directly accountable to an electorate and are easily swayed by political considerations.