ICC Arrest Warrants: Outrageous or Valid?

On May 20^th ICC Prosecutor Karim Khan announced he is seeking arrest warrants for Bibi Netanyahu and Yoav Gallant, along with three leaders of Hamas. Israeli officials across the board reacted with anger, indignation, and outrage. There certainly are valid reasons to question and criticize Khan’s decision. Here are some of the main complaints against the indictments, and context to understand them.

False Equivalence

One objection is that it is unseemly for accusations against Israeli leaders to be lumped together with the accusations against Hamas. As opposition leader Yair Lapid put it, “It is not possible to issue arrest warrants against Netanyahu, Sinwar, and Deif. There is no such comparison, we cannot accept it and it is unforgivable.”

This is a valid point. The charges against Israeli and Hamas leaders are completely different both in their content and their timing. Clearly, the only reason the ICC chose to announce them both together was to avoid the appearance of bias in the Israel- Palestinian conflict that would result from indicting leaders on one side without corresponding indictments against the other.

But the result of announcing the charges together is to create a false sense of equivalence between Netanyahu and Sinwar. That’s what happens when a court plays politics. The ICC should have indicted Hamas leaders immediately after Oct. 7^th, as their crimes were readily evident, and waited to take action against Israeli leaders only when and if that would later be justified.

Unhelpful

Many world leaders have argued that regardless of these indictments’ legal underpinnings, they are a hindrance to efforts to stop the fighting. For Example, British Prime Minister Rishi Sunak said through a spokesman, “This action is not helpful in relation to reaching a pause in the fighting, getting hostages out or getting humanitarian aid in.”

Of course one can only speculate as to what effects the indictments will have, but these concerns seem well-founded. The indictments are already leading to finger-pointing and accusations that wouldn’t seem conducive to efforts to negotiate a cease-fire. It’s also possible the indictment may increase Netanyahu’s desire to cling to power and make it harder to replace Israel’s current government.

One could argue that the ICC, as a legal institution, should disregard all that and simply follow the results of its investigations wherever they lead and seek indictments whenever it has the necessary evidence. But as it has already let politics play a role in the timing of its indictments by arranging to announce them both together, it would make sense for it to have taken these considerations into account as well. A good rule in life is first of all to do no harm, and if by announcing indictments at this time the ICC makes the situation worse for Palestinians and Israelis it’s hard to see that as a wise move.

Jurisdiction

The ICC only has jurisdiction over countries that consent by ratifying the ICC’s founding document, the Rome Statute. Israel does not, and Israel therefore argues that the ICC has no jurisdiction over the current war.

The ICC bases its jurisdictional claim on the State of Palestine having acceded to the Rome Statute back in 2015. Since only countries can join the Rome Statute, and the legal status of Palestine is disputed, in 2021 a panel of ICC judges examined the case and ruled that the Palestinian ratification to the Rome Statute should be effective and the ICC does therefore have jurisdiction over any alleged crimes committed in territory Israel has occupied since the Six Day War.

Setting aside the question of Palestine’s status, this is a key feature of the ICC- while countries can refuse to join, they are still subject to ICC jurisdiction if they commit crimes on the territory of another state that is a member. Israel and other countries such as the United States see that as an affront to their sovereignty, as they want to be able to keep their citizens and soldiers out of the ICC’s jurisdiction no matter what.

It should be noted that the U.S. in particular is vulnerable to accusations of hypocrisy in how it applies this principle. For example, Russia is also not a party to the Rome Statute, yet the U.S. government reacted positively to the ICC’s indictment of Putin based on the jurisdictional claim that Putin’s crimes were committed in Ukraine, which did accept the court.

Israel can maintain the legal position that at least back in 2015 the Palestinians lacked the legal standing to join the ICC. Even though that was not the decision of the ICC’s judges, that argument certainly has merit. However, regardless of ICC jurisdiction Israel is certainly still obligated to refrain from war crimes and crimes against humanity, so this is no defense against the content of the ICC’s indictment. Also, by this logic the ICC would be unable to indict Hamas leaders too.

It's Not True and It's Self-Defense

Many Israeli leaders have protested that while the accusations against Hamas leaders are accurate and self-evident, the accusations against Netanyahu and Gallant are simply untrue. These issues are well known- the indictment says under Netanyahu and Gallant’s direction, Israel has deliberately attacked civilians, prohibited the distribution of aid, and more. Israeli leaders deny this, saying civilian deaths are not the result of direct targeting but rather the unfortunate consequence of fighting a war in an urban area where Hamas uses human shields, that Israel does not restrict aid arbitrarily but Hamas seizes it for its fighters and smuggles weapons, and so on. Furthermore, Israeli leaders insist that everything Israel has done must be understood in the context of self-defense from Hamas and an effort to free the hostages.

With regard to the accuracy of the ICC’s allegations, let’s remember they have plenty of evidence. But more important, Netanyahu and Gallant, like all ICC defendants, are innocent until proven guilty. Should they stand trial they will have every opportunity to tell the ICC judges their side of the story and explain why the prosecutor got it wrong. Asking for one’s day in court to clear one’s name is the proper reaction to what one believes are false charges, not attacking the court or the foundations of international law.

The ICC is also very clearly aware of Israel’s right to defend its citizens and rescue its hostages. In his statement announcing the charges, ICC Prosecutor Karim Khan stated:

Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.

This is a serious point Israeli leaders must understand.

Serious Gripes, Serious Accusations

Israel has a right to be angry that the ICC Prosecutor paired the release of the indictments against Israeli and Hamas leaders together, and it may have been imprudent for the ICC to go ahead while cease fire negotiations are at a critical stage. But the ICC is on solid legal ground issuing these indictments, and they are serious and credible. Netanyahu and Gallant would be wise to react with remorse and humility rather than outrage.