The decision of the International Criminal Court to issue arrest warrants against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant is a result of blatant antisemitism on the side of the court, and persistent inaction in Jerusalem.
The actions of the court are clear. To get to this point, the ICC had to adopt a number of problematic steps. First it had to admit an entity – the “State of Palestine” – that is not a real state. Then the court had to act ultra vires and decide on the borders of the nonexistent state.
The ICC prosecutor then needed to act on the baseless complaints of the Palestinians and adopt the narrative of the terrorists who led the October 7 massacre and their supporters.
Jerusalem was given multiple opportunities to pull the rug from under the process. When the Palestinians asked the United Nations, in 2012, to recognize the “State of Palestine,” Jerusalem should have declared that the move was a fundamental breach of the Oslo Accords, and implemented sanctions against the Palestinian Authority/the Palestine Liberation Organization. When the “State of Palestine” joined the ICC in 2014/2015, Jerusalem had a second chance.
When the Palestinians met on scores of occasions with the ICC prosecutor with the declared goal of opening an investigation against Israel, Jerusalem had a third chance. When the ICC prosecutor announced, in 2020, the opening of the investigation against Israel, Jerusalem had a fourth chance. When the ICC’s Pre-Trial Chamber decided, in 2021, to ignore history, reality, and the law, Jerusalem had a fifth chance. When the current ICC prosecutor decided to turn the terror narrative into a request to issue arrest warrants, Jerusalem had a sixth chance.
Catastrophic inaction
So what could and should have been done?
As part of the Oslo Accords, Israel agreed to waive billions of shekels of taxes in favor of the PA. As the PA/PLO was breaching the accords, Israel collected over NIS 100 billion on behalf of the PA. The tax income from Israel accounts for no less than 65% of the PA’s total income. Without this income, the PA cannot exist.
In other words, out of every NIS 100 the PA/PLO spent hunting Israel in the ICC, Jerusalem provided NIS 65. Jerusalem literally funded the Palestinian Jew-hunt. As the PA/PLO fundamentally breached the Oslo Accords, Jerusalem acted like an ostrich, shoving its head into the sand.
Unfortunately, this course of action is not unique to the ICC. When the Palestinians asked, and succeeded, earlier this year, to upgrade the status of the “State of Palestine” in the UN, Jerusalem failed to act. When the PA/PLO pushed the UN General Assembly to ask the International Court of Justice to provide an advisory opinion attacking Israel, Jerusalem did nothing. When the Palestinians then asked the UNGA to adopt the biased ICJ advisory opinion, thereby, effectively rebirthing, on steroids, the infamous UN resolution comparing Zionism to racism, Jerusalem did nothing.
The abject failure, time after time, to use the substantial financial leverage that Jerusalem holds over the very existence of the PA has now proven to be disastrous, and the Palestinians have registered a substantial success, not only in the ICC but also, and no less importantly, in the court of public opinion.For the ICC, Jerusalem’s inaction could also prove to catastrophic.
The ICC was created to be an international forum that would prosecute the worst offenders. It was created to allay the fears that the punishment of war criminals would be dependent, as had historically been the case, on which side won the war. The neutrality of the court stands at its very core.
The court’s repeated decisions to acquiesce to the Palestinian political weaponization of the court against Israel is a fundamental breach of the court’s raison d’etre.
Already plagued as being another failed, cash sapping international institution, for many years the court was predominantly seen as a forum for the prosecution of rogue African leaders.
Instead of honestly addressing these shortcomings, the ICC decided to double down on its bias, in the thought that hunting the Jewish state would restore some of its legitimacy. In reality, however, the oblique politicization of the court will not improve its image. Rather, it is more likely to signal the last nail in the coffin and death knoll of an institution that could potentially have served a noble goal.
Given the circumstances, Jerusalem must act. Since it is totally unacceptable that Jerusalem continue funding the PA-PLO-ICC Jew-hunt, Jerusalem must inform the PA that until it waives its status in the UN and withdraws from the ICC, both fundamental breaches of the Oslo Accords, it will not see another agora. Palestinian malfeasance must have consequences.
The writer, a reserve IDF lieutenant colonel, is the director of the Initiative for Palestinian Authority Accountability and Reform in the Jerusalem Center for Security and Foreign Affairs and a former director of the Military Prosecution in Judea and Samaria.