Israel and the International Criminal Court (ICC)

Accusing IDF Soldiers and Politicians
Jurisdiction
U.S. Sanctions ICC
Warrants for Netanyahu and Gallant

The International Criminal Court (ICC) is a criminal court that prosecutes individuals. The International Court of Justice (ICJ) is a civil court that hears disputes between countries. 

Accusing IDF Soldiers and Politicians

The Palestinians have for years tried to convince the International Criminal Court (ICC) to charge Israeli soldiers and politicians with war crimes. The approach to the ICC is part of the desperate effort by Palestinians to find some international body that will force Israel to capitulate to their demands. Nothing the ICC can do, however, will bring the Palestinians one iota closer to statehood. Nevertheless, they cheered the court’s decision on February 5, 2021, claiming jurisdiction in the West Bank, East Jerusalem, and Gaza.

The same day, the State Department issued a statement:

Similarly, Israel rejected the decision because no sovereign Palestinian state exists. Other countries, including Germany, Hungary, Australia, the Czech Republic, Austria, Brazil, Uganda, and Canada, also expressed opposition to an ICC probe of Israel. Israel has no right of appeal because it is not a court member.

On December 4, 2024, it was reported that the ICC’s arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant have heightened global legal risks for Israel Defense Forces (IDF) personnel, particularly those involved in Gaza operations. The IDF has recorded about 30 criminal proceedings against its members, with at least eight soldiers forced to leave countries such as Cyprus, Slovenia, and the Netherlands due to legal threats. While no blanket travel ban exists, the IDF now conducts risk assessments for soldiers traveling abroad, focusing on those who served in Gaza. Pro-Palestinian groups, using online footage shared by soldiers, are compiling “blacklists” to target IDF personnel internationally.

On January 8, 2024, in response to growing efforts to target Israeli soldiers abroad, IDF Chief of Staff Herzi Halevi has mandated that the identities of all soldiers and officers involved in combat operations be concealed. This applies to personnel ranked Lieutenant Colonel and below. The decision comes amid increasing international legal threats, including the ICC arrest warrants against Israeli leaders, which have encouraged anti-Israel activists. Soldiers have been warned against sharing images or videos of themselves in combat, as these could be used in potential war crime investigations. Military lawyers will guide personnel on these new protocols; field photos will require special approval.

Israel has engaged legal experts worldwide to monitor legislation and provide representation to mitigate risks. An inter-ministerial team, including Mossad and Shin Bet representatives, assesses arrest and interrogation risks for IDF members in various countries. Although non-ICC member states like the U.S., China, and India are not bound to act on ICC warrants, local laws may still pose threats. Footage shared by IDF soldiers, some suggesting potential violations of international humanitarian law, has intensified legal challenges and harmed Israel’s global image. Israel pledges immediate legal support to soldiers facing arrest or harassment abroad.

Jurisdiction

The United States and Israel have consistently said they will not recognize the jurisdiction of the court over their citizens. In 2002, Israel and the United States signed an agreement that said that they would not extradite, transfer, or surrender any citizens of the other state to the Court or to a third country that may surrender them to the Court. In 2012, the Palestinians’ application to join the court was rejected. Three years later, Congress required the Secretary of State to certify that the PLO wasn’t trying to use the ICC against Israel. The Palestinians ignored the warning and reapplied for membership in 2015, and the ICC accepted the application of the non-existent state of “Palestine.”

The Palestinians subsequently filed several complaints against Israel and Israeli officials without suffering any negative consequences from the United States. The Palestinians’ action could have triggered the cut-off of $400 million in U.S. assistance according to a law allowing the termination of aid if they supported an ICC investigation of Israel. President Obama, however, used a waiver provided by the legislation to avoid penalizing the Palestinians.

U.S. Sanctions ICC

In June 2020, the Trump administration announced sanctions against the ICC and reiterated a longstanding policy that Americans are not subject to its jurisdiction. The principal motivation for the decision was anger over the court’s investigation of alleged U.S. war crimes in Afghanistan; however, Secretary of State Mike Pompeo reportedly conferred in advance with Israeli Prime Minister Benjamin Netanyahu about Israel’s concerns about the ICC during a trip to Jerusalem.

In announcing the sanctions, Pompeo said the United States is “also gravely concerned about the threat the court poses to Israel. The ICC is already threatening Israel with an investigation of so-called war crimes committed by its forces and personnel in the West Bank and in the Gaza Strip. Given Israel’s robust civilian and military legal system and strong track record of investigating and prosecuting wrongdoing by military personnel, it’s clear the ICC is only putting Israel in its crosshairs for nakedly political purposes. It’s a mockery of justice.”

Pompeo acknowledged receiving letters from a bipartisan group of 69 senators and 262 House members urging him to call on the ICC to halt its “politically motivated” investigations of Israel and the United States. “That’s what the U.S. is dead set on doing, and with good reason,” Pompeo declared. “They’re a trusted and wonderful partner and a buttress of American security. If a rogue court can intimidate our friend or any other ally into abrogating its right to self-defense, that puts Americans at risk as well.”

Netanyahu applauded the U.S. decision, calling the ICC “corrupt,” “biased,” and “politicized.” He accused the court of fabricating “outlandish charges,” such as that “Jews living in their historic homeland constitutes a war crime.”

After a five-year preliminary examination, ICC Prosecutor Fatou Bensouda said on December 20, 2019, “There is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, East Jerusalem, and the Gaza Strip.” She suggested investigating crimes committed by both Israel and Hamas during Operation Protective Edge, those committed by Israel in response to the riots during the “Great March of Return,” and those committed by Israel through settling Israeli civilians in disputed territory..

Bensouda based her decision to move forward on her insistence that Palestine is a state and that the court has jurisdiction over crimes committed in territories controlled by Israel. She reiterated this view in April 2020.

Israeli Attorney General Avichai Mandelblit published a rebuttal to Bensouda’s initial claim, making the case that the ICC lacks jurisdiction over the case because “no sovereign Palestinian State is in existence” that could delegate to the court criminal jurisdiction over its territory and nationals.

Before Bensouda could proceed with an investigation, ICC Judges Péter Kovács of Hungary, Marc Perrin de Brichambaut of France, and Reine Adélaïde Sophie Alapini-Gansou of Benin had to determine whether it has jurisdiction.

Seven states were invited to submit opinions. All seven asserted the “State of Palestine” does not presently satisfy the conditions to be considered a state because the Palestinian Authority does not control the territories. According to Alexander Loengarov, an official at the European Economic and Social Committee, “the ICC was established with the goal of not letting allegations of serious crimes go unscrutinized,” so the court may accept that “Palestine possesses sufficient characteristics of a state” and award itself jurisdiction to investigate alleged Israeli crimes “regardless of whether the alleged perpetrators are Israeli or Palestinian.”

As Alan Baker noted, the court should have no jurisdiction because “Israel is not party to the Rome Statute, the treaty that lays the architecture of the International Criminal Court and defines international crimes.” Baker added that the “integrity and credibility” of the ICC has been irreparably damaged. The irony, he said, is that “an independent juridical body devoted to preventing impunity enjoyed by the most serious and atrocious war criminals, by bringing them to justice, is now being politically manipulated against the one state that since the early 1950s has consistently advocated the establishment of such a body, the State of Israel.”

The judges from France and Benin accepted the premise that since the PA joined the Rome Statute, it should be treated as a state. Justice Kovács rejected their argument and said the majority’s opinion has “no legal basis in the Rome Statute, and even less so, in public international law.”

Judy Maltz and Netael Bandel noted that “Palestine is defined as an ICC member state that has the ability to grant the court jurisdiction to investigate crimes in its territory, but the ruling doesn’t mean the court recognized Palestine as meeting the criteria for statehood under international law.

The Court’s decision to claim jurisdiction does not automatically mean that Israelis will be investigated. The prosecutor was allowed to begin an investigation, but her term ended in June, and it was unclear if her successor would continue her work.

In addition, after announcing a formal investigation, Israel has 30 days to inform the prosecutor of its intent to conduct its own investigation into potential war crimes and crimes against humanity. This requires the approval of the prosecutor and the ICC.

At worst, the ICC could charge and potentially convict some Israelis of war crimes. It will take some time to identify suspects, however, and the standard for such prosecutions is high. The ICC has only prosecuted 30 cases since the court was created in 2002, winning only nine convictions. It is unlikely the court would have better luck finding fault with the democratically elected leaders of Israel or the soldiers of the IDF. Israel would fight any prosecution vigorously and, like the United States, refuse to recognize the court’s jurisdiction over its citizens.

As with other bodies, such as the Human Rights Council, the focus on Israel, a democracy with an independent judiciary that investigates accusations of abuse, represents a double standard. The ICC is not investigating blatant crimes committed by serial human rights abusers such as Turkey, China, and Russia. It has not, for example, charged Syria’s Bashar Assad for his use of chemical weapons against his citizens.

Warrants For Netanyahu and Gallant

The Palestinians should also be careful what they wish for because Israel could bring charges against the terrorists in “Palestine,” for whom the evidence of war crimes is overwhelming. Rather than standing at the head of an independent state, Mahmoud Abbas could find himself in the dock facing imprisonment as a war criminal for his responsibility in inciting violence.

Ignoring objections by the United States, Israel, and others, the ICC prosecutor confirmed the opening of an investigation into the Palestinian situation on March 3, 2021. Once again, the United States, Israel, and other countries criticized the decision.

Some 100 relatives of hostages taken by Hamas on October 7, 2023, traveled to the Hague on February 14, 2024, to submit charges of kidnapping, sexual violence, torture, and other crimes to the International Criminal Court.

On May 20, 2024, the International Criminal Court’s (ICC) chief prosecutor, Karim Khan, announced his decision to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for their roles in the Israeli offensive against Hamas that began after the Hamas massacre of Israelis on October 7, 2023, as well as for Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh (the latter two were since killed in Israeli operations, complicating the legal proceedings). 

Khan alleges that Netanyahu and Gallant are suspected of crimes, including the starvation of civilians as a method of warfare, murder, intentionally directing attacks against a civilian population, and extermination. Contrary to these accusations, military experts have indicated that Israel has gone to unprecedented lengths to ensure the safety and welfare of uninvolved civilians in enemy territory during a military campaign. This includes minimizing collateral damage and providing a steady supply of humanitarian aid to conflict-affected areas. U.S. President Joe Biden and Secretary of State Antony Blinken strongly condemned Khan’s decision. Biden called it “outrageous,” asserting that there is “no equivalence” between Israel and Hamas. Blinken added that the ICC’s arrest decisions could jeopardize ceasefire efforts, hostage negotiations, and the delivery of humanitarian aid in Gaza.

In response, on September 20, 2024, Israel filed an official petition with the ICC, challenging potential arrest warrants for Netanyahu and Gallant. The Foreign Ministry claimed that Israel has a robust and independent legal system capable of self-investigating such allegations and questioned the ICC’s jurisdiction in the matter. Israel rejects the accusations of targeting civilians and using starvation as a war tactic, emphasizing that Hamas uses civilians as human shields and points to its efforts to deliver humanitarian aid to Gaza. 

Ignoring Israeli objections, the ICC issued arrest warrants for Netanyahu and former Defense Minister Gallant on November 21, 2024, based on Khan’s allegation that they were responsible “for the war crime of starvation as a method of warfare.” The court added, “There are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.”

This was the first time the court had taken such action against the leaders of a democratic country, the first charges of the “crime of starvation,” the first allegations of war crimes during a defensive war, and the first prosecution of a non-state party to the ICC based on the request of an entity not universally recognized as a state. The two men could be subject to arrest in more than 120 countries that accept the ICC’s jurisdiction, including most of Europe but not the United States.

Netanyahu issued a statement that “there is no war more just” than the one it was fighting against Hamas. Referring to the investigation of Khan for sexual harassment, Netanyahu said, “The decision was made by a corrupt chief prosecutor trying to save his skin from serious sexual harassment allegations.”

White House National Security Communications Advisor John Kirby said America “fundamentally rejects” the Court’s decision. “The United States has been clear that the ICC does not have jurisdiction over this matter.”

President Biden said, “The ICC issuance of arrest warrants against Israeli leaders is outrageous. Let me be clear once again: whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas.  We will always stand with Israel against threats to its security.”

The ICC also issued a warrant for Mohammed Deif even though he was believed to have been killed by Israel.

On November 27, 2024, Netanyahu announced Israel’s decision to appeal the ICC’s arrest warrants against him and Gallant, submitting the appeal minutes before the deadline. Netanyahu’s office emphasized that Israel rejects the ICC’s jurisdiction and legitimacy. The appeal, while unable to suspend the warrants, challenges the factual and legal basis of the ICC’s findings and aims to highlight its alleged bias against Israel. Netanyahu also met with U.S. Senator Lindsey Graham, who is promoting measures in Congress to counter the ICC and discourage cooperation with it.

Israel submitted two documents to the ICC Appeals Chamber arguing against the court’s jurisdiction and the arrest warrants. The first document contends that the ICC’s Pre-Trial Chamber dismissed Israel’s claim of lack of jurisdiction on procedural grounds without substantive review, violating sovereignty and the rule of law. Israel insists it has the right under Article 19(2) of the Rome Statute to challenge jurisdiction and demands a substantive evaluation. The second document disputes the ICC’s authority over “the situation in Palestine,” arguing that Palestine does not qualify as a state under international law, the Oslo Accords restrict Palestinian criminal jurisdiction over Israelis, and the ICC cannot act without Israel’s consent as it is not a Rome Statute signatory. Israel requests suspending the arrest warrants and reversing the Pre-Trial Chamber’s decision.

The decision followed internal debates, with legal advisors supporting the appeal, citing flaws in the ICC’s decision. At the same time, some officials opposed it, arguing it implicitly recognizes the court’s authority and that Israel should rely on U.S. sanctions under President-elect Donald Trump to pressure the court. Netanyahu considered appointing an investigative judge, a new role in Israeli law, to independently examine the ICC’s allegations, potentially demonstrating Israel’s capacity to handle such cases domestically and invoking the ICC’s complementarity principle. However, this plan faces legal and practical hurdles. Confidence in the ICC’s appellate body is low in Israel, as it includes non-legal diplomats, further complicating the process.

However, on November 29, 2024, ICC Prosecutor Karim Khan requested the rejection of Israel’s appeal against the arrest warrants, arguing that the appeal does not meet the criteria for direct appeal under the Rome Statute. Khan maintains that the contested decision is procedural and does not directly address the court’s jurisdiction. Thus, it is not subject to appeal under the statute. He emphasized that the Pre-Trial Chamber is the appropriate forum to handle this issue. Khan also opposed Israel’s request to suspend the arrest warrants, arguing that they are procedurally invalid.

On December 15, 2024, Israel officially filed an appeal against the ICC arrest warrants, arguing that the lower court and prosecutor acted prematurely. Israel, backed by the U.S., Germany, and others, claims the ICC failed to address its jurisdictional objections fully. It violated procedural requirements under Articles 18 and 19 of the Rome Statute, including not providing updated warnings or specific details about the allegations. The appeal aims to reverse or freeze the warrants by highlighting substantive and procedural flaws in the ICC process.

Sources: International Criminal Court.
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