ICC Arrest Warrants for Netanyahu, Gallant. Who’s Next?

The other shoe has finally dropped.  A moment many have been awaiting for years, has finally arrived.  International Criminal Court (ICC) chief prosecutor, Karim Khan, has requested arrest warrants for Prime Minister Netanyahu, defense minister, Yoav Gallant; along with Hamas’ top leadership: Yahya Sinwar, Mohammed Deif, and Ismael Haniyeh. Here is Khan’s interview with Christiane Amanpour:

Among the charges against the Israeli officials are:

• Starvation of civilians as a method of warfare as a war crime contrary to Article 8(2)(b)(xxv);
• Willfully causing great suffering, or serious injury to body or health contrary to Article 8(2)(a)(iii), or cruel treatment as a war crime contrary to Article 8(2)(c)(i);
• Wilful killing contrary to Article 8(2)(a)(i), or murder as a war crime contrary to Article 8(2)(c)(i);
• Intentionally directing attacks against a civilian population as a war crime contrary to Articles 8(2)(b)(i), or 8(2)(e)(i);
• Extermination and/or murder contrary to Articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;

Israel’s defenders have argued that the Court does not have jurisdiction in this matter. What they want and what is true are two different things. Palestine is a signatory of the Rome Statute and an accepted party to it. Hence actions committed on its territory are subject to ICC jurisdiction.

Others have argued that because Israel is a so-called democracy with a fully functioning legal system bound by the rule of law, that the Court has usurped the Israeli justice system. This too is unfounded, since these same courts have refused in almost every instance to hold anyone, whether prime ministers or lowly IDF soldiers, accountable for their crimes. Where a nation’s legal system refuses to address these matters, the ICC serves as a court of last resort.

State Department spox, Matt Miller delivered a tawdry statement about the ICC’s announcement:

These limits are rooted in principles of complementarity, which do not appear to have been applied here amid the prosecutor’s rush to seek these arrest warrants, rather than allowing the Israeli legal system a full and timely opportunity to proceed.

In other situations, the prosecutor deferred to national investigations and worked with states to allow them time to investigate. The prosecutor did not afford the same opportunity to Israel in this case, which has ongoing investigations into allegations against its personnel.

First, it’s ironic that he is offering a lesson in the protocols of the ICC, which the US has refused to join.  How, for instance, do you claim the ICC has no jurisdiction when you yourself refuse jurisdiction?  Second, there was no “rush” to seek warrants. In fact, the Court first opened its inquiry in 2014, not 2023 or 2024.  Then, the war started nearly eight months ago.  The ICC took a single month to issue a warrant for Putin’s crimes.  Yet, the US heartily approved that measure.

The chief prosecutor did “defer” to Israeli investigation and allowed Israel ample time to “investigate.”  The Israeli legal system has refused to do so.  As for the claim, Israel has “ongoing investigations,”  this is not what the warrant is based.  Those investigations are of single incidents or individual soldiers or officers.  Even then, the likelihood of accountability is in doubt.  They are not comprehensive.  They do not examine Israel’s overall conduct of the war.  That is what the ICC will judge in this case.

Israel was prepared to cooperate with the prosecutor and had made that clear. In fact, the prosecutor himself was scheduled to visit Israel as early as next week to discuss the investigation and hear from the Israeli Government.

No, Israel was not prepared to cooperate.  In fact, it had refused to do so for years, despite numerous attempts and invitations to participate. Khan did visit Israel and the West Bank in December. Other than that, it has failed to cooperate. Only recently, after news of the impending arrest warrants, did Israel change its tune.  I imagine that the reason Khan did not visit Israel is that conditions were placed on him as to who he could meet and where he could go.

Amorality of US policy

For a master class in the art of running rings around government officials, this exchange between State Department spox and the reporter scrum is instructive. A few excerpts:

QUESTION: So, you don’t think that Hamas – you don’t think that Hamas leaders should be prosecuted?

MR MILLER: We – we absolutely believe that Hamas should be held accountable. That could be —

MR MILLER: That could be either through the prosecution of the war effort by Israel. It could be through —

QUESTION: In other words, them being killed?

MR MILLER: Hold on, it could by being killed. It could by – it could by being brought to justice in an Israeli court.

In what follows, Miller deliberately ignores that Palestine is a country in the eyes of 124 UN member states who voted to accept Palestine as a signatory of the Rome Statute which accepts the jurisdiction of the Court:

…We believe that there should be the establishment of an independent Palestinian state, and an independent Palestinian state would have the ability to join the Rome Statute and become a member of the International Criminal Court, as every state in the world has the right to do.

Once again, here Miller betrays either ignorance or mendacity:

…We don’t have any confidence in the process that they used to get to a conclusion in this case – in fact, quite the opposite – and I don’t know where they got their information…They of course are not in the ground – on the ground in Gaza to collect information firsthand. Whether they’ve been able to collect evidence otherwise,

Actually, the chief prosecutor visited the Rafah crossing months ago and sought permission for himself and his investigators to enter Gaza to collect evidence.  His request was refused nor has Israel changed its stance.  If the US wanted a fair case it would demand that Israel admit Khan to Gaza. A prosecutor cannot properly prepare a case by gathering physical evidence from only one party.

Here Miller offers an example of seeming to say something, while saying nothing. If you know anything about how the Israeli justice system works regarding security cases you’d know they were a sham.  Miller, unless he’s an ass or a fool, knows this as well. But he tries to pass off this pablum as a substantive response:

MR MILLER: I’m not ready to offer an assessment on [the credibility of Israeli investigations] at this point, because the investigations are ongoing. I think it’s appropriate to wait for their conclusion. If there are investigations that conclude, that we don’t think have been conducted appropriately, and we don’t think there has been justice when there ought to be justice, and we have the ability to make that assessment ourself [!], we will absolutely stand up and say it. But the investigations are ongoing right now. We can’t offer that kind of conclusion at this point.

I almost don’t have to comment on this one.  It’s a flagrant example of moral obtuseness in the face of depravity. It’s an example of the thinking of WWII State Department officials who denied the Holocaust was happening and refused to offer any aid to the victims:

QUESTION:  The ICC accuses of Netanyahu and Gallant of causing extermination, starvation of civilians, as a method of war, deliberately targeting civilians. Do you think those things are not happening in Gaza?

MR MILLER: We don’t…

After the warrants are issued, each of them will become wanted men.  The Israelis will, at least theoretically, only be able to travel to countries like the US, which refuse to recognize ICC jurisdiction.  The Hamas figures may find it difficult to travel to some Arab states with which it maintains close relations. Those states may not welcome their presence, because of pressure to respect the ICC’s case. If the US does permit the Israeli leaders’ entry, it will bring opprobrium on us for harboring a fugitive from international justice.

Netanyahu reacted with expected [self]righteous indignation, declaring the announcement a blood libel against the Jewish people.  Ah yes, the “eternal hatred of the Jew.”  A claim that always comes in handy when a criminal needs to distract from his crimes.  Blame the victim. Blame anyone who seeks to hold you accountable. Blame everyone but yourself.  Blame everyone but the country you lead.

Pres. Biden issued his own scathing rebuke of the announcement:

The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas.

Yes, there certainly is equivalence. Whatever one thinks of the 10/7 attack by Hamas, murdering 30 times the 1,100 Israelis killed then, is more than equivalent.

Senate Republicans sent a harsh letter to the ICC threatening it with sanctions.  It closed with the stark threat, “you have been warned.”  Of what?  Sabotage?  Physical assault?  Arrest?  Netanyahu issued a similar threat, saying he wasn’t worried about the ICC’s action. Rather, Khan is the one who should be worried. About what? A Mossad assassination?

Sen. Lindsay Graham exemplifies the response:

“This outrageous decision is truly a slap in the face to the independent judiciary of Israel, which is renowned for their independence.”

No. That is actually wrong, as I show above. Besides, its dual track of military and civilian courts adds to the claim that Israel’s legal system is neither transparent nor independent.

Threats or acts of physical revenge against the ICC may seem far-fetched in the context of normal relations between nations. But given Israel’s genocide and its flouting of international norms, there are no longer constraints, no taboos remaining.   Israel operates with impunity, daring the world to act. Almost always–except in this case–does it decline do so.

If truth be told, it’s unlikely any of these suspects will be brought to justice.  They are smart enough to understand how to evade arrest.  Nonetheless, this action by the ICC is significant. It is the first step in holding Israel (and Hamas) accountable for their actions.  Though many ICC suspects escape its clutches for years, some eventually do enter the dock in the Hague where they are tried for their crimes.

The plain ugly truth is that 35,000 Palestinians had to die in order to keep Bibi in power.  Without genocide, without a war, Netanyahu would likely have been swept from power.  Of course, there’s a chance he could have weathered the universal hatred with which he is held in Israel, without going to war. But he couldn’t take the chance. He knew a war would be a lead cinch to protect him.

Israel never deserts a leader during a war.  Even if they hate him.  As long as Palestinians are dying he isn’t on trial and isn’t in prison, where he belongs.

Though domestic political considerations may not be relevant to the case against him, the chief prosecutor can cite numerous Israeli political and military figures who have explicitly said these things.  Every Israeli knows why this war has continued for seven months. They know it is not for military or security reasons, but to save Bibi’s ass.  Certainly the ICC may argue that genocide was a necessary corollary to Netanyahu’s clinging to power.

Though Khan rightly says political considerations play no part in the decision about bringing an ICC case (though this may not be fully accurate), there is one aspect of the announcement that does show such considerations. These were likely only the first of such legal procedures against individuals.  Though two Israelis and three Palestinians are now targeted, more arrest warrants will likely be forthcoming. However, Khan wanted to start with the top dogs, a few key players.  Then at a later date he can expand his net:

…The ICC Prosecutor indicated that his office will not hesitate to submit additional applications for warrants of arrest if new evidence emerges from the continuing investigation.

Weeks ago, when news of the imminent arrest warrants was first reported, IDF chief of staff Herzi Halevi was mentioned as another target.  This should happen at some point. You can’t have genocide without military forces carrying it out.  Charges should come against Shin Bet chief Ronen Bar since his agency is responsible for identifying and targeting Palestinians for elimination. The spy agency was undoubtedly responsible for many civilian deaths accompanying any such assassinations, since the IDF has “loosened” its rules considerably on engaging targets, despite the added civilian toll. Its widespread use of AI targeting systems has also intensified the civilian toll by many orders of magnitude. Other IDF figures such as chiefs of the southern and central commands, responsible for military operations in the West Bank and Gaza, respectively, could be summoned as well.