The ICC challenge: Should Israel be worried going forward? - analysis

Even before October 7, the International Criminal Court (ICC) presented a formidable challenge to Israel.

To address the challenge, there were inter-governmental meetings that included many ministries, the IDF, and the National Security Council, with either the Foreign Ministry’s Tal Becker or, for years, the Justice Ministry’s Roy Schondorf, and now Gilad Noam, leading the proceedings.

None of the above officials do interviews with the media, but The Jerusalem Post was able to gain access to a number of crucial top officials on deep background.

The Foreign Ministry, Justice Ministry, and the IDF already had this issue on their radar screens with their ears to the ground and were very active in the relevant arenas.

Prior to October 7, an objective analysis based on public data showed that since the new ICC chief prosecutor, Karim Khan, took over, the 2022 budget for Israel-Palestine was close to zero, and the 2023 budget for the probe was very small in comparison to the overall budget of around 59 million euros.

It was also much smaller than some of the ICC’s individual large-case budgets and is the smallest criminal probe budget. At the same time, at around NIS 900,000, it was sufficient funding for a full staff and was already positioned to be a jump on the way to more funding and more attention in the future, in 2024 or later years.

The chance of an increase in funding could be much greater after October 7, in light of the allegations that the IDF has killed some 15,000 Palestinians. Even if that number is larger than the real number, even if more of the dead are Hamas terrorists than first thought, and even if the IDF followed international protocols for trying to avoid civilian harm, the number of dead Palestinian civilians is the highest it has been in decades.

Israel’s greatest ally, the US, has repeatedly said that too many Palestinian civilians were killed (as a moral statement more than a legal one, but still significant), leaving one to wonder how the ICC, generally much less friendly toward Israel, will conclude otherwise.

Turning the ICC in a more aggressive funding direction regarding Israel would still face crosswinds.

Generally, to date, almost all of the focus and resources are being thrown at the issue of Russian war crimes in Ukraine. Until October 7, with great caution, Israeli sources would have noted that there had been no concrete public action on the Israeli-Palestinian probe to date during two years of Khan’s term.

If in December 2022 he said publicly that he hoped to visit Palestine in 2023, there had been no movement in that direction through official channels.

But the Post reported exclusively last week that there was secret dialogue in much of 2023 about Khan visiting.

All of those contacts, along with last-minute decisions by Khan to forgo visiting Gaza in exchange for an informal visit to Israel and the West Bank, culminated in a surprise visit by Khan over the weekend of November 30-December 1.

Whatever the result of Khan’s visit, by October 29 the chief prosecutor had issued his most detailed and stern warning to Israel to date in a public video, and then repeated it to CNN, the BBC, and the Guardian.

A more detailed analysis of his warning and of his recent visit will follow in next week’s second part to this series on the ICC and Israel.

The intersection of law and politics

A large number of the challenges Israel faces from the ICC became an issue long before the current war and this past weekend.

Pre-war evolving geopolitics and trends globally have significantly impacted Israel’s standing vis-à-vis the ICC specifically, as well as in the eyes of the West in general.

Many top Israeli officials have noted that from September 11, 2001, until at least 2017 (when the West last won a major land battle against ISIS), there was far greater backing for Israel’s more aggressive military tactics from the US and the West.

Put simply, when the US and the West had to fight against asymmetric warfare tactics with the Taliban and al-Qaeda in Afghanistan and ISIS in Iraq and Syria, asking Jerusalem to hold back, while at the same time they were obliterating Fallujah and flattening other cities, was more difficult.

During that time, America implemented tactics similar to Israel of calling civilians and dropping warning fliers to get them to leave areas, as well as “roof knocking” (firing non-explosive missiles on rooftops to make loud noises to get civilians to leave).

But as it’s been six years since the US and the West have been engaged in any serious, extended fighting themselves, the broader political context within which US and Western leaders view Israeli military actions has altered.

Israeli sources would agree that there is always a political atmosphere that impacts many issues, along with other factors.

In addition, the Post has learned that some Israeli sources would flag that the Biden and Trump administrations have different atmospheres when it comes to legal issues, even though nominally, politics and law are supposed to be separate.

After all the support that the Biden administration has given to Israel during the war and the fact that it has sought to keep the ICC out of Israel’s hair, the fact is, there is far more criticism and pressure from Biden regarding the legality of the IDF’s conduct and the settlements than there was under Trump.

At the same time, Israeli sources would argue that there is a separate world of law that generally operates on its own set of more objective and technical principles.

The question then becomes: Where does politics impact law, and where does law run on its own set of rules?

Within the legal world itself, the Post has learned that, leaving politics aside, the discussions between the IDF and foreign militaries do generally remain at a professional and technical level. Within that dialogue, possibly the most important conversation for Israelis is defining evolving “state practice” and what aspects of state practice have become binding expectations of law.

GENERALLY, THE IDF, the Foreign Ministry, and the Justice Ministry want to influence where state practice is going, which is a complex issue. State practice, say Israeli sources, is not just a question about how militaries act in the field, it is also a question about what goes into military manuals, how soldiers are trained, and the dialogue surrounding military issues in academia.

Possibly the largest issue that is altering the way international criminal law and war issues are viewed is the ICC’s aggressive pursuit of war crimes against Moscow. 

The Post has learned that Israeli sources are concerned about some of the directions taken by the ICC. For example, Israel obviously condemns evident war crimes perpetrated by Russia.

But what if the ICC starts to cut corners to indict more figures in Russia over more issues, since, in any case, the whole of the West believes Moscow is guilty of massive war crimes? Even if the “ends justify the means” in the Russia case, this could lead to creating bad precedents and less nuanced laws that could later be abused by anti-Israel factions to go after the IDF in cases that are much grayer and more complex.

There are also difficult questions about when the ICC can go after a head of state, even if again, it would seem to make sense for Russian President Vladimir Putin to be on the hook for alleged war crimes. The Post has learned that Israel is keeping a close eye on the issue to ensure that its future interests are not harmed. 

This is Part One of a two-part series on Israel and the ICC.