The hypocritical and distorted decision by the International Criminal Court (ICC) in The Hague to issue arrest warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant is very bad news for Israel. The potential travel restrictions on Netanyahu are a minor personal price compared to the dramatic cost Israel might pay for this decision.
The ICC's reasoning for issuing the arrest warrants amounts to a harsh indictment of Israel's policies in its war on Gaza. Simultaneously, proceedings in the International Court of Justice (ICJ) accuse Israel of "genocide," and sanctions are being imposed on Israelis in the West Bank. Only a dramatic change can prevent Israel from becoming a pariah state.
This hope for change lies in the shift of power in Washington and statements by senior officials in the incoming administration against these courts. However, these efforts might not suffice to counter the broad consensus among European nations and others that Israel's policies in the war are indeed illegitimate.
Investigations into Netanyahu and Gallant
After months of investigation and warnings from the ICC about its intention to issue arrest warrants for Netanyahu and Gallant, the court published the warrants yesterday. This was done after the prosecutor presented the findings of his investigation regarding the crimes attributed to the two, and the pre-trial chamber approved the request.
The warrants state that Netanyahu and Gallant are suspected of systematically depriving Gaza’s population of food, water, medicine, and electricity and using humanitarian aid as a tool to achieve military goals, causing severe suffering to the population, including "surgeries on children without anesthesia" and more. They are also accused of "classic" war crimes, such as killing innocent civilians during "disproportionate attacks" carried out by the IDF in Gaza.
Israel’s claims that the ICC lacks jurisdiction over it were also rejected by the court.
The ICC's decision to issue arrest warrants against Israel's prime minister and defense minister is a significant blow to Israel’s legal and diplomatic status. First, in terms of its image, it places Israel and its leaders on the same bench as some of the world’s worst dictators, including Vladimir Putin, Congolese warlord Thomas Lubanga, and other African tyrants. But it also has far more concrete implications.
Israel, as a Western-style democratic state, has been perceived as one over the years. This perception has enabled most Western nations to cooperate with Israel on military matters and supply it with weapons and components essential for their production. The possibility that its leaders are war criminals, and hence its policies are criminal by the standards of international humanitarian law, could further erode the willingness and ability of Israel's allies, and certainly its critics, to collaborate on critical fronts.
From a legal perspective, the court's decision is hypocritical and illegitimate. From the outset of the war, despite this being the easiest path for Israel to gain an advantage in the conflict with Gaza, Israel has consistently acted with international law as its guiding compass. It has provided humanitarian aid and water to Gaza throughout most of the conflict and conducted strikes only when they conformed to the laws of war. Even experts familiar with such wars worldwide acknowledge that the number of uninvolved casualties in Gaza is proportionate.
However, the ICC is heavily influenced by political trends. While it has never taken such steps against the U.S. or other Western countries involved in similar conflicts, anti-Israel sentiment allowed—and even encouraged—the court to feel comfortable acting in this manner. While this may comfort Israelis, it does not tangibly benefit Israel, as much of the world relies on these erroneous warrants, with some even welcoming them.
Israel's lifeline in countering the ICC might be the incoming U.S. administration. Past actions and statements by senior officials in the new administration since the warrant’s publication indicate that Trump’s administration may be willing to exert significant pressure on the ICC to reverse its actions against Israel. This will not guarantee success, but it would undoubtedly ease the pressure on Israel.
Together with the ICJ proceedings against Israel, the country’s legal situation looks dire. Israel's current policy, which adheres to international law, is legitimate and essential. Its efforts must now focus on providing a legal response, not necessarily directly, to the ICC’s claims and demonstrating the court’s anti-Israel politicization to countries that might be influenced. Close collaboration with the incoming administration could potentially mitigate the harmful consequences of this decision.
Dr. Shuki Friedman is the director general of the Jewish People Policy Institute and a law lecturer at the Peres Academic Center. He previously served as the head of the International Law Department in the Prime Minister's Office.