Israel is preparing for the International Criminal Court in the Hague to issue arrest warrants for Prime Minister Benjamin Netanyahu and senior members of his cabinet over alleged war crimes in Gaza.
Israeli authorities estimate that warrants for Netanyahu, Defense Minister Yoav Gallant and Israeli military chief Herzi Halevi could be issued as early as later this week, Haaretz reported Sunday, adding that Israel’s Justice Ministry has been preparing for the possibility since the beginning of the Gaza war.
Israel not ICC member
Israel is currently facing a complaint submitted by South Africa Dec. 29 to the International Court of Justice for alleged genocidal acts. The two countries have each presented their arguments, and the court is investigating. Unlike the ICJ, which is concerned with states, the ICC investigates individuals.
Some 124 countries are parties to the Rome Statute, the legal framework that established the ICC. The United States is not a member of the ICC, and neither is Israel. The court can only try nationals of member states and investigate crimes allegedly perpetrated on the soil of a member state. For years, Israel argued that the ICC has no jurisdiction over its nationals, but when the Palestinian Authority joined the ICC in 2015, the court was effectively granted jurisdiction over the Palestinian territories.
The case against Russian President Vladimir Putin is a somewhat similar situation. Russia withdrew from the Rome Statute in 2016 and is thus not a participant in the ICC nor under its jurisdiction. Ukraine is not a full ICC member but has accepted the jurisdiction of the court since 2014 leading the ICC to issue arrest warrants for Putin and Maria Lvova-Belova, the Russian commissioner for children’s rights, in March 2023.
ICC warrants obligate all the court's members to detain the person in question, which was why the Russian president did not travel to Johannesburg last August for the BRICS summit hosted by South Africa, an ICC member state. Israeli authorities now fear Netanyahu and other ministers and security officials could face a similar situation.
ICC warning
ICC chief prosecutor Karim Khan traveled to Israel and the Palestinian territories in December 2023 at the invitation of families of Israeli victims killed on Oct. 7 by Hamas as well as families of hostages held in Gaza.
During his visits to the south of Israel and Ramallah in the West Bank, Khan stressed that his office would investigate the Oct. 7 attack but also warned Israel over its military actions in Gaza and the humanitarian crisis there. Khan also addressed concerns over settler violence against Palestinians in the West Bank. "All actors must comply with international humanitarian law. If you do not do so, do not complain when my office is required to act," Khan stated during his visit.
On Feb. 14, 100 family members of hostages kidnapped by Hamas submitted a complaint to the ICC against the militant group for crimes against humanity. Ofri Bibas, whose brother, sister-in-law and two nephews are captives, told Al-Monitor at the time he was hoping the ICC would issue arrest warrants for Hamas leaders and thus pressure them into accepting a deal for the release of the hostages. No such warrants have thus far been issued.
Israel's plan
Since the Oct. 27 Israeli ground invasion of Gaza, the Ministry of Justice has been advising the Israeli military on complying with international law. Last January, the Israel Defense Forces began investigating dozens of cases in which soldiers are accused of acting against orders and violating international law. Israel's Supreme Court is also reviewing petitions filed by human rights organizations demanding that Israel expand the scope of humanitarian aid to the enclave.
IDF spokesperson Daniel Hagari said on Sunday, "Over the last few weeks, the amount of humanitarian aid going into Gaza has significantly increased. In the coming days, the amount of aid going into Gaza will continue to scale up even more."
Many legal observers in Israel expect ICC warrants in connection to the deteriorating humanitarian crisis in Gaza, statements by far-right ministers encouraging attacks on Palestinians and deadly incidents such as the April 1 killing of seven aid workers of the World Central Kitchen.
Last Friday, Netanyahu warned on social media that an ICC move “would set a dangerous precedent" for democracies fighting "savage terrorism and wanton aggression” and vowed that Israel would never accept an attempt by the ICC to "undermine its inherent right of self-defense."
Israeli human rights lawyer Michael Sfard posted a call to Israel leaders on X Sunday, writing, "Don't investigate incitement to genocide; don't investigate a fire policy that destroys entire cities, towns and villages; do not allow the free passage of humanitarian aid and you will cause starvation. But then don't be surprised when you become a target of the International Criminal Court."
According to Haaretz, Israel has turned to diplomacy to persuade member states of the ICC to block such a move. The newspaper reported that Netanyahu and Strategic Affairs Minister Ron Dermer are personally involved in these efforts along with the Biden administration.
An Israeli diplomatic source told Al-Monitor on condition of anonymity, "This issue has been a priority for us for several weeks now, with our missions abroad raising our concerns. Any such move would add unnecessary pressure at a moment when Israel is negotiating a possible cease-fire in Gaza, and when humanitarian aid to the Strip is being expanded daily."
According to a statement issued Sunday by the office of Foreign Minister Israel Katz, the minister had instructed all Israeli missions worldwide to prepare for "a wave of severe antisemitism, anti-Jewish and anti-Israeli outbreaks."
