The decision by the judges of the International Criminal Court (ICC) to issue arrest warrants against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, on suspicion that they are responsible for a series of war crimes and crimes against humanity, places Israel in one of the most challenging situations it has ever faced in the international arena.
It must be emphasized that Israel has legitimate legal arguments against the decision for a wide range of reasons, including the fact that Netanyahu and Gallant were not given the opportunity to refute the allegations against them.
However, the question is not whether Israel agrees with the decision but rather how it will deal with the consequences, which could be serious.
Of course, one immediate result of the decision is that it would be far more difficult for Netanyahu and Gallant to travel abroad. All state parties to the ICC (124 countries) are obligated to execute the arrest warrants, and it could be assumed that travel to those countries, which include the European Union countries, as well as many other countries around the world, will not take place in the near future.
However, the consequences of the decision extend far beyond the restrictions on Netanyahu and Gallant’s ability to travel abroad. Diplomatically, Israel could become a “pariah state,” where any contact with it becomes problematic.
The arrest warrants that have already been issued are not necessarily the final word from the court. The prosecutor may intend to submit requests for arrest warrants against additional senior Israeli officials. Such requests may already have been submitted and are being kept confidential. The prosecutor has already declared that the investigation into what is taking place in the Gaza Strip, as well as in the West Bank, continues.
Moreover, significant risks exist even outside the arena of the ICC in The Hague: The pressure on governments of countries that still allow arms sales to Israel to stop doing so is expected to increase and the risk that arms sales will cease entirely. Another danger is the various organizations that have collected information on IDF soldiers who appeared in social media videos during the war.
In a long list of countries, criminal complaints have already been filed. In some, investigations have been opened against soldiers with dual citizenship or for whom there is information that they are expected to visit those countries. These organizations may intensify their efforts to advance criminal investigations and arrest warrants against commanders and soldiers.
Israel's options
THE SITUATION is quite serious, but Israel still has several options to deal with the potential consequences of the decision to issue the arrest warrants. One option that has been raised is to act, in cooperation with the United States, to impose sanctions against ICC staff and judges and attempt to “force” the court to change its decision. This does not appear to be a particularly helpful course of action, and there is concern that it may even be harmful.
It is reasonable to assume that the judges were fully aware of the American threat even before deciding and have taken it into account. Experience shows that this course of action might create a boomerang effect, and it might make it harder for our allied countries, which are members of and value the court, to support us.
Another course of action is to attempt to work within the court’s processes to cancel the proceedings. The primary course of action available to Israel in this regard has been, and remains, using the principle of complementarity. If Israel investigates the allegations against Netanyahu and Gallant, it can argue before the court that the proceedings should be suspended. However, at this stage, after the arrest warrants have already been issued, the bar for such an Israeli claim has become higher.
To convince the court to suspend the proceedings, Israel would need to show that an independent, speedy, and effective investigation is being conducted – one that could lead to criminal prosecution if there is reasonable suspicion that an offense was committed. The inquiry must specifically address Netanyahu and Gallant’s actions and the concrete allegations raised by the prosecutor.
The court will ignore an investigation whose sole purpose is to avoid prosecution. If, indeed, such an investigation would be undertaken, it would also be useful in limiting the expansion of allegations against Netanyahu and Gallant and to reduce the risk of additional arrest warrants being issued against other political and military figures.
It is possible that a state commission of inquiry, authorized to transfer such allegations to the attorney-general to examine whether to open a criminal investigation, might satisfy the court. Another course of action, which at this stage may be more effective, is a decision by the attorney-general to open a criminal investigation immediately. Either way, a “political” inquiry committee that is not independent and lacks full authority will certainly not suffice.
It is also critical to emphasize in this context that the dismissal of the attorney-general (as is currently under consideration), who heads Israel’s criminal prosecution system, is an act that could severely harm Israel’s ability to claim that it is conducting an independent investigation. If the government can dismiss the attorney-general because it is dissatisfied with her decisions, it will be easy for Israel’s adversaries to claim that Israel’s investigative system is not independent and, therefore, does not meet the requirements of complementarity.
Finally, the court’s decision once again highlights the need to be careful and for Israel to refrain from conduct and policies that might expose its representatives to arrest warrants and indictments before the court: controversial policies and operational actions that raise allegations of violations of the laws of war (including aspects of humanitarian assistance); statements by politicians and commanders that could be interpreted as indicative of intent to commit crimes; and the failure to investigate allegations of violations of the law. To reduce further exposure to criminal proceedings, Israel must improve its conduct in all these areas.
The ICC emphasized in its decision that it is publishing the main reasons for the arrest warrants – a practice that is not customary – precisely because there is concern that the alleged acts are continuing to be committed. The government would do well to announce, clearly and unequivocally, that Israel does not intend to pursue any policy of starvation in northern Gaza and has no intention of permanently preventing the return of Palestinian residents to the north of Gaza. Without such an announcement, the ICC investigation and the risks to Israel’s interests may continue to expand.
Regarding the ongoing fighting in Gaza and activities in the West Bank, caution should be taken to adopt policies and operational actions that could be interpreted as violations of the laws of war, irresponsible statements by politicians should be avoided, and independent investigations into credible allegations should be conducted.
These are Israel’s essential tools to halt the continued descent down this dangerous path.
The writer is a senior fellow at the Israel Democracy Institute.