Thanks to Benjamin Netanyahu, Israel, which once dreamed of being a light unto the nations, has taken a step closer to becoming a leper among the nations. The Israeli prime minister and the defence minister he sacked a fortnight ago, Yoav Gallant, are now wanted men, the subject of arrest warrants issued on Thursday by the international criminal court (ICC), accusing them of war crimes and crimes against humanity in Gaza. From now on, some 124 countries are effectively closed to them: if Netanyahu or Gallant set foot in any member state of the ICC – which includes Britain and most of Europe – they face the risk of arrest. The UK government has already said it will follow the law, which sounds like a commitment to detain the two men if they come here. They are to be shunned, as a matter of international law.
Israeli ministers and their allies are raging against the ICC, accusing it of bias and double standards in levelling against Israel charges that it has never made against the leaders of any other western democracy. But the blame lies squarely with Netanyahu himself. Because this move, which signals a new isolation of Israel, was entirely avoidable.
Start with the law. Ask why the ICC didn’t go after, say, Britain for suspected war crimes in Iraq or the US on similar charges in Afghanistan, and you’ll be told that the ICC stays out of countries that have their own, reliable systems of justice. The legal principle is called “complementarity”, by which the ICC defers to the courts of the country accused, so long as it’s satisfied that any crimes will be properly investigated and pursued.
For Israel, the simplest solution would have been the establishment of a state commission of inquiry into the Hamas attacks on 7 October 2023 and all that has followed. As it happens, that’s been a loud demand within Israel ever since that murderous day 13 months ago. But Netanyahu has refused to give way. He fears an investigation will point the finger at him for leaving Israel exposed to the deadliest attack in its history. An inquiry would blow apart his pretence that, though he has been in the prime minister’s seat for most of the past 15 years, he was blameless for that horrific failure – though simultaneously responsible for all of Israel’s military successes. So, in a break with all Israeli precedent, there is still no inquiry into 7 October or the conduct of the war in Gaza. And that, under the principle of complementarity, opened the door to the ICC.
Of course, Netanyahu’s culpability goes much deeper. The ICC’s statement makes clear that the heart of its case against Israel’s leaders relates to the supply of humanitarian aid into Gaza. The ICC says there are reasonable grounds to believe that Netanyahu and Gallant “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity”.
Netanyahu and his defenders say that the ICC’s warrants are outrageous because they overlook the viciousness of Israel’s Hamas enemy and seek to tie the hands of Israel in defending itself. But the way Israel has pounded Hamas is not at the heart of the ICC case. Instead, the focus of the charge sheet is aid.
Now, obviously, the primary reason why Israel should have ensured sufficient supplies of essentials is moral. It is indefensible to use “starvation as a method of warfare”, as the ICC puts it. The second reason is strategic. As I wrote early on in the war, even senior US military figures sympathetic to Israel tried to persuade the country’s leadership that it would be wise to make crystal clear that its war was with Hamas, not the Palestinians of Gaza. It should have provided Gaza’s civilians with all the food and medicine they needed, in order to drive a wedge between Hamas and the people that group has ruled so oppressively and so long. Instead, it made harsh lives even harsher and sowed hatred into the hearts of a new generation. An epic strategic failure.
The legal arguments come last. It should have been obvious to Netanyahu and his allies that while charges relating to the military conduct of a war are legally hard to prove, aid is a clear and measurable commodity. The absence of a domestic Israeli inquiry tasked specifically with examining aid policy, coupled with reckless statements about the imposition of a “total siege” – a threat that was never implemented but which immediately painted the Gaza operation in “illegal and excessive colours”, as the Israeli scholar of international law Prof Yuval Shany put it to me – and Netanyahu and Gallant had all but written their own arrest warrants.
Israel, backed by the US, will argue that the ICC has acted unfairly. They will note that, while the court bent over backwards to help the likes of the UK, US or even Venezuela clear the complementarity bar, it gave no such leeway to Israel. They will say that sending aid into Gaza is no easy task, not when Hamas or other armed men stand ready to steal it for themselves, as happened just this week. They will say that it is appalling to include a Hamas commander in the same warrant as Netanyahu and Gallant, as if there can be moral equivalence between a democratic state and a terror organisation (though they would surely have blasted the ICC just as vehemently had it overlooked Hamas’s crimes). They will say the ICC didn’t give Israel enough time or notice, that the chief prosecutor, Karim Khan, cancelled a planned trip to Israel in May at the last minute, preferring to announce his application for arrest warrants on CNN. They will say that Khan is compromised, himself the subject of an internal inquiry into alleged sexual misconduct.
There will be plenty of takers for these arguments, especially the one alleging double standards. The US, perhaps backed by Hungary and others, could well seek to intimidate the court, threatening to cut off funding or to impose sanctions on ICC officials. The outgoing Biden administration has already denounced the warrants and Donald Trump will only be tougher.
But the charges will not melt away. I have spoken to four different specialists in international law about the Gaza war, and all four believe it is likely that war crimes and crimes against humanity have indeed been committed. Importantly, those same four also believe that the gravest accusation against Israel – that it is committing genocide – cannot be legally sustained. That view is hardened, incidentally, by the ICC’s decision to reject one charge sought by the prosecutor against the Israeli pair, namely the crime of “extermination”.
Few people expect to see Netanyahu in the dock at The Hague any time soon. On the contrary, this move will only strengthen him politically, just as serial domestic indictments only helped Trump. Netanyahu will say he is the victim of hate-filled outsiders, that it’s Israel against the world and that he alone stands as its true defender, ready to sacrifice his own liberty for the sake of the nation.
But make no mistake, this will have a major impact. It will strengthen calls for arms embargos of Israel and for criminal investigations into lower-level Israeli political and military figures. It will accelerate Israel’s path to international pariahdom. And remember, this is exactly what Hamas hoped for on 7 October: to drive Israel so mad with grief and rage that it would lash out in ways that would destroy its international legitimacy. Netanyahu gave them exactly what they wanted. Hamas set the trap – and he walked right into it.
-
Jonathan Freedland is a Guardian columnist
-
Do you have an opinion on the issues raised in this article? If you would like to submit a response of up to 300 words by email to be considered for publication in our letters section, please click here.
