Shortly after the chief prosecutor of the International Criminal Court (ICC), Karim Khan, asked judges this Monday to issue arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Gallant, a man was heading with the national flag to a demonstration in Jerusalem (called days before the announcement) to ask Netanyahu to resign and bring forward the elections. Then, a taxi driver opened the window to scold him.
“Only Bibi!” he shouted, using the name by which Netanyahu is popularly known.
― “See you in The Hague,” responded the protester.
The Hague is where the ICC is based and Khan assured that he has “reasonable grounds to believe” that Netanyahu and Gallant are “criminally responsible” for war crimes and crimes against humanity in Gaza. After more than seven months of invasion, the more than 35,000 deaths (mostly women and children), the constant forced displacement of the population (right now in Rafah, 900,000 people) and hunger as a weapon of war have left Israel in an unprecedented situation.
Not only because of the symbolism of simultaneously calling for the arrest of two of Israel’s most prominent politicians and three Hamas leaders (Yahia Sinwar, Mohamed Deif and Ismail Haniya), but also for placing the country in an unlikely international position. flattering, which clashes head-on with the idea he has of himself and which he usually expresses in phrases such as “Light in the middle of the darkness” or “the country with the most moral army in the world.” “A mansion in the jungle,” Ehud Barak, prime minister between 1999 and 2001, used to define it.
If the judges accepted the chief prosecutor’s request, Netanyahu and Gallant would be the first leaders of a democracy with an arrest warrant by a court normally associated – one of the most frequently criticized – with the trials of African dictators, such as the former Sudanese head of state Omar al Bashir or, in 2023, the Russian president, Vladimir Putin. Such a shockfor a country that boasts of being part of the West and whose main allies are the United States and European countries such as Germany and the United Kingdom.
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“I am not worried”
“I’m not worried about traveling, or at all about our status as Israel. I think the prosecutor should be concerned about his status, because he is really transforming the ICC into a pariah institution. People are not going to take it seriously,” Netanyahu said this Tuesday in an interview with the American television network ABC. Based in The Hague, the court judges those most responsible, not States.
Bill Van Esveld, acting associate director of Israel and Palestine at the US NGO Human Rights Watch, believes that, although unrelated, the parallel proceedings in the two courts in The Hague – in the ICC against individuals and in the International Court of Justice Justice, from the UN, for genocide, against Israel as a State—can pressure the rest of the countries to stop providing it with weapons. “Although there is no direct legal connection, it will be increasingly risky for third countries to continue sending weapons without being associated in one way or another with crimes as serious” as those allegedly committed by Israeli leaders: extermination, use of hunger as a weapon of war or voluntary killing of civilians, he says by phone. Van Esveld also recalls that the prosecutor could request the arrest of other leaders, and not only for what has happened since October 7. Or add crimes.
This Tuesday, in his first reaction to the request for his arrest, the Minister of Defense recalled that “the State of Israel is not part of the International Criminal Court nor does it recognize its authority.” Neither does his main ally, the United States – whose president has already described the decision as “scandalous”. Nor other powers like China, India or Russia.
But 124 other States are, including all the countries of the European Union or the United Kingdom. London and Berlin have come out to criticize the prosecutor’s announcement, but all signatories to the Rome Statute (which gave birth to the court in 2002) would be obliged in theory to arrest and hand over Netanyahu and Gallant to The Hague on its soil. Israeli leaders would suffer the practical consequences of an arrest warrant precisely because their country does not have international plague status and has important political support in Europe, the historical support of the ICC. The Jewish State would also have obstacles in reorienting its diplomacy, because it lacks relations with some of the non-signatories, such as Iran or Arab countries that do not recognize it; or a particularly close link with Beijing or Moscow. It has for years been strengthening its relationship (very much based on the sale of weapons) with other countries of growing importance, such as India or Azerbaijan.
Until now, Israel’s allies have spared him the arrest photo. The most significant case is that of Tzipi Livni. She was Foreign Minister in Ehud Olmert’s government during the first major Israeli offensive in Gaza, Cast Lead, which left 1,400 dead in 23 days in 2008 and 2009.
That last year, at the request of a group of activists, a British court issued an arrest warrant against Livni for alleged war crimes and she ended up canceling the trip. In 2011, British authorities granted automatic immunity to all Israelis on an official visit. Four years later, Livni was going to undertake his first visit to the country since then, but since he no longer held any public office (he only led the Kadima party), he was not protected by that immunity. The Government of London then used an exceptional tool: it certified that he was going on a “special mission”, invited by the then minister William Hague. He gave him immunity, according to jurisprudence, and stopped the presentation of a new arrest warrant in court.
Hamas, on the other hand, has little to lose. He is isolated internationally (despite his 2006 Gaza election victory), particularly since the brutality of his October 7 attack. The United States and the EU consider this fundamentalist movement a terrorist organization. Haniya, its political leader and one of three whose arrest the prosecutor has called for, resides in Qatar, which has not signed the statute. And, although the order would affect his ability to move abroad, most of the countries he visits, such as Turkey, Lebanon or Iran, are also not signatories to the statute. The other two Hamas leaders (Sinwar and Deif) whose arrest the prosecutor requests are missing, presumably hiding in Gaza tunnels.
The State of Palestine does recognize the court. Since 2015, three years after its entry as a non-member State in the United Nations. The same chamber that will have to study the new arrest warrants determined in 2021 that the court has jurisdiction in the internationally recognized Palestinian territory: Gaza, the West Bank and East Jerusalem. The crimes for which the court calls for the arrest of Hamas leaders did not take place there, but inside Israel, but the ICC is competent because they were committed by Palestinians.
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