Ann Arbor (Informed Comment) – Israeli Prime Minister Benjamin Netanyahu is deeply worried that the International Criminal Court in the Hague may be on the verge of issuing arrest warrants for him along with Defense Minister Yoav Gallant and Army Chief of Staff Herzi Halevy, according to the Israeli press, including Israeli Channel 13.
The ICC is chartered by the Rome Statute, which came into effect in 2002, to which 124 countries are signatories. Although Israel is not a signatory, the State of Palestine, a non-member observer state at the United Nations, has signed. Therefore, the ICC has jurisdiction over war crimes committed in Gaza and the West Bank, of which the Israeli government has committed a great number. Hamas, of course, is also guilty of a series of war crimes, which the ICC is also deliberating.
The International Criminal Court does not judge governments but rather government officials. Its finding in the spring of 2011 that Moammar Gaddafi was guilty of crimes against humanity for his attempt to crush the peaceful protests that broke out that year paved the way to the UNSC-authorized no-fly zone that doomed Gaddafi’s ability to use fighter jets and helicopter gunships to put down the revolution against him. ICC judgments have therefore sometimes been consequential.
The ICC also indicted Sudanese President Omar al-Bashir in 2009 for crimes against humanity in Darfur. Al-Bashir was overthrown by a popular revolution in 2019, and in 2020 the provisional government agreed to send him to the Hague for trial. That still has not happened, but this chain of events shows how an ICC indictment can deeply weaken and imperil a leader.
On the other hand, Russian dictator Vladimir Putin has thumbed his nose at the court since it indicted him last year. His movements, however, have been affected, since when he travels abroad he risks arrest. He had to cancel a trip to South Africa last summer because Pretoria is an ICC signatory and may have been constrained to arrest him.
Netanyahu engaged in bluster this week against the court, saying its rulings would do nothing to restrain him — which I interpret as an assertion that they would not make him cease committing any crimes for which he was indicted. Netanyahu may in any case go to jail in Israel for corruption, for which he is presently on trial.
That Netanyahu is alarmed at this possible development shows the triumph of the State of Palestine, which was created in 1993 by the Oslo Peace Accords, and formally termed the “Palestine Authority.” The PA has for the past 15 years pursued a strategy of legal action against Israel for repeated violations of international law in the occupied Palestinian territories. First, the state of Palestine sought observer status at the UN, which could be granted by the General Assembly and which could not be blocked by the passionately anti-Palestinian US. Then the state of Palestine signed the Rome Statute and acceded to the International Criminal Court.
The ICC has no jurisdiction over non-signatory states, and so ordinarily would not be able to issue rulings against Israeli officials. But because the state of Palestine gave the ICC jurisdiction in the Palestinian West Bank and in Gaza, it can issue indictments for war crimes committed by Israelis in those occupied territories. It has been a brilliant legal strategy on the part of the Palestine Authority, and potentially far more consequential than the horrid terrorism to which Hamas has resorted. In fact, Hamas officials may well also be indicted soon.
The ICC case against Israeli officials is different from the proceedings brought by South Africa against Israel at the International Court of Justice accusing Tel Aviv of committing genocide. The ICJ is a judicial body established by the UN to adjudicate disputes between member states.
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