Israel scrambles for support to counter ICC arrest warrants

Contrary to the bravado displayed by Israeli Prime Minister Benjamin Netanyahu and his advisers on the arrest warrants issued by the International Criminal Court (ICC) on November 21, there are indications that they were worried at that possibility even earlier, in April this year, and were trying to prevent it by enlisting other powers' support.

On April 19, 2024, The Times of Israel, quoting Channel 12, said that an "emergency discussion" was held at the Prime Minister's Office to decide how to "fend off" the potential warrants. The paper also said that Netanyahu had raised this possibility with visiting Britain Foreign Secretary David Cameron and Germany's Foreign Minister Annalena Baerbock and "sought their help".

The same paper said on April 28 that Netanyahu was "under unusual stress" over the prospect of an arrest warrant against him by the ICC "which would constitute a major deterioration in Israel's international status." Hence, steps were taken to give a "rare briefing on Shabbat" to the international media through Israeli Defence Force (IDF) spokesman Nadav Shoshani on the government's support to the American-sponsored temporary humanitarian pier off Gaza.

Their worry was heightened when another UN body, the International Court of Justice (ICJ), started hearing the genocide case against Israel, launched by South Africa on December 29, 2023. Two hearings in the case were held on January 11 and 12, 2024.

The ICJ, the principal judicial organ of the United Nations (UN), was established in 1945 under the UN charter for adjudicating disputes between states and fixing responsibility of a state under international law after inquiring whether a state party to the case has breached it. It can issue "provisional measures" to preserve those rights until the case proceedings are completed. In this case, provisional orders to prevent and punish incitement to genocide and to allow relief materials were passed on January 26, 2024.

On July 19, 2024, the ICJ, in a different context, gave its advisory opinion that Israel's occupation of the Gaza Strip and the West Bank, including East Jerusalem, along with the associated settlement regime, annexation and use of natural resources was unlawful. This was on a reference made by the UN General Assembly in 2022. The ICJ mandated Israel to end its occupation, dismantle its settlements, provide full reparations to Palestinian victims and facilitate the return of displaced people.

The ICC, established in 2002 by the "Rome Statute", is different from the ICJ as it seeks to establish individual criminal responsibility for serious international crimes. Through its prosecutor, who has the power to carry out investigations of crimes within the jurisdiction of the ICC, the court can issue arrest warrants for individuals.

Israel is in a bind as it had signed the Rome Statute on December 31, 2000, after considerable reluctance, although in the 1940s, the Jews were ardent supporters of such a court, having suffered under the Nazi regime. The procedure is that either the UN Security Council or any of the 124 member states of the Rome Statute can refer a situation to the court, asking the prosecutor to conduct a preliminary investigation. The prosecutor can also launch an investigation on his own initiative.

The court does not have a police force, but all states that have signed are obliged to comply with a requested arrest warrant. Hearings are conducted as a criminal trial, with prosecution and defence counsels before a tribunal of judges.

Israel complained to the ICC on October 5 that its prosecutor Karim Khan did not give it an opportunity to investigate "his allegations before seeking arrest warrants against its leaders, which was a fundamental principle of the ICC's founding charter."

According to it, the prosecutor should have, under Article 18 of the Rome Statute, provided "sufficiently specific information to the state under investigation about the crimes that they are investigating" to examine whether that country was willing to launch prosecutions against the errant individuals.

It alleged that Khan relied upon a 2018 notification sent to Israel about alleged crimes "relating to Israeli settlement policy and claims raised in previous hostilities in Gaza" and not on the Israeli operations consequent to the Hamas attack on October 7, 2023. US Secretary of State Antony Blinken and two US senators supported this, saying that Khan "rushed" to get the warrants "to politically target Israel."

As things stand, it is not clear what the signatories, especially from Europe of the Rome Statute, would do. America, Israel, Russia, China and India have not ratified the Rome Statute. President Joe Biden has said that America had rejected the ICC decision. Incoming Republican leader John Thune has urged the Senate to pass a Bill that was cleared by the House of Representatives, under which the US would impose sanctions on people "engaged in any effort to investigate, arrest, detain or prosecute any protected person of the United States and its allies."

There are many imponderables here. While Britain, supported by EU's foreign policy chief Josep Borrell, originally said that it would honour the treaty obligations, there are reports that France is reconsidering its earlier stand by Prime Minister Michel Barnier that the country was bound to abide by all treaties.

On November 27, Israeli newspaper Haaretz quoted the Quai d'Orsay (French foreign office) to reveal that Netanyahu and Yoav Gallant could be entitled to immunity from arrest warrants issued by the ICC. This was after the Israel-Lebanon ceasefire, helped by French President Emmanuel Macron.

At the same time, western powers led by America are apprehensive that any dilution of the ICC's powers might boomerang on the ongoing investigations against Argentina and Russia, which they want to pursue.

The Haaretz says that Netanyahu is waiting for the Trump administration to pull him out of this morass, along with another domestic scandal on the deliberate leak of an IDF intelligence document on the killing of hostages for 'swaying public opinion against a ceasefire with Hamas.' For this, Eli Feldstein, Netanyahu's close aide, was arrested on November 18. In the deeply polarised Israel, Netanyahu is worried whether Israeli prosecutors would also hold him responsible.

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