Netanyahu is playing with fire with IDF preparedness and the ICC - analysis

Prime Minister Benjamin Netanyahu took two huge gambles when it comes to the IDF.

First, expecting that the fallout from canceling the reasonableness standard would not seriously affect the IDF’s readiness for war or increase war crimes allegations against the military before the International Criminal Court (ICC).

Is he correct? The warnings from the security and legal establishments went something like this:

IDF Chief-of-Staff Lt.-Gen. Herzi Halevi and Air Force Commander Maj.-Gen. Tomer Bar made it clear they would support the government against reservist threats. They said they would not take political sides, but in actuality aligned themselves right behind Netanyahu. Yet, in March and even this past week, the IDF’s top echelons privately warned the prime minister that the military could come apart.

Worst-case scenarios coming to life

If, until a few weeks ago, IDF officials brushed off the worst-case scenarios as a bluff, that changed this past week when they said that a significant number of IDF reservists were actually quitting. And these numbers were staggering: Over 10,000 total, including around 1,200 from the air force and 1,200 from IDF intelligence, not to mention IDF medical personnel, special forces units, and others.

Of course, Netanyahu threw counterarguments at them: that the quitters might be bluffing. Despite the threats to quit in March, all the reservists showed up to fight Palestinian Islamic Jihad in Gaza in May and for the operation in Jenin earlier this month.

At the end of the day, he argued, if the country was in existential danger, everyone would show up. He also added that Israel could not set a precedent in which the military dictates policy to the civilian leadership, implying that this could set the stage for a military coup or permanently end the IDF’s ability to act on a bipartisan basis.

The problem with all these arguments can be summed up in three words: Are you sure?

The stakes, if Netanyahu turns out to be wrong, are much higher than being wrong on any standard Knesset law.

From time to time, a bureaucratic screw-up or miscalculation about how people will vote emerges, and either the vote gets tabled for a week at the last minute, or the law is quietly amended shortly after the problematic clause is discovered.

Here, if things go downhill, there may be no redoes. If the air force in a couple of weeks cannot man sufficient flights into Syria, Iran’s proxies will start successfully smuggling more weapons onto the border with the Golan on a daily basis.

At some point, Hezbollah or Iran may decide to push the envelope to see whether the air force is still functioning, and even if it is, that could lead to a war, a war that would not have happened otherwise. The stakes actually could not be higher.

The military coup argument is weak because unlike military coups everywhere else, here the “rebels” are saying they will hand in their badges to protect an independent judiciary, not that they will raise their weapons against the rule of law.

So, everyone will learn in the coming weeks whether Netanyahu’s gamble was correct or not – with the IDF currently saying it is still war-ready, but that damage to its cohesion has already begun.

Besides gambling on the IDF’s capabilities, Netanyahu also gambled on whether, when the IDF fights, Israel will have the ability to prevent war crimes prosecutions, especially by the ICC.

According to nearly every legal expert, government or military, it is a real risk. The Supreme Court’s independence, along with IDF and state prosecutions, act as a legal “Iron Dome” against global war crimes cases.

The ICC opened a preliminary file against Israelis and Palestinians in 2012 and opened a full criminal probe in 2021.

Deputy Attorney-General for International Law Dr. Gil-Ad Noam, the top civilian expert in government on the issue, told the Knesset that restricting the “reasonableness standard” will harm Israel’s legal battle against the ICC and other international criminal investigations.

So how could Netanyahu push forward? There is a flip side to these arguments – backed by a relatively small percentage of Israeli legal scholars – which Netanyahu is banking on.

Those scholars who supported the full repeal of the reasonableness standard in the form that it passed, in defiance of a watered-down version which would have garnered more support with moderate conservative legal scholars, say that Israel’s legal establishment is blowing hot air.

They argue that the ICC has no jurisdiction over Israel for many reasons, including that “Palestine” is not a UN-recognized state and Jerusalem never ratified the ICC’s Rome Statute, which would grant it the ability to be tried and judged in the court.

The problem is that, after six years of fighting, Israel effectively already lost this battle in 2021. The fact that the ICC’s decision to recognize Palestine as a state may be legally incorrect will not help IDF officers avoid prosecution, since it is ultimately up to that court.

Legal supporters of repealing the reasonableness standard would add that even if the ICC had jurisdiction from a member-state to bring charges against Israeli individuals, the Rome Statute does not delve into a country’s legal system to the point of determining whether its courts apply a reasonableness standard rather than some other tool to judge constitutionality or criminality.

The legal establishment is hoping to convince the ICC that it cannot prosecute IDF soldiers – on the basis that the military has its own independent system that does that very thing, carries out probes and prosecutions – with the Supreme Court at the top of the pyramid. The hope is that the legitimacy of the Israeli legal system remains stable in the eyes of the ICC so that it doesn’t necessitate intervention.

Others assert that the court will rule against Israel no matter what, and the fact that the ICC effectively ruled against Israel on Palestinian statehood by accepting Palestine at the Hague proves there is no point in dialogue with it.

Israel’s mainstream legal establishment believes that the Palestinian statehood issue is a hard political-legal issue to win because around 140 countries did recognize Palestine. Yet, no democracy today wants to see the ICC second-guessing another democracy’s independent legal system – if it is independent.

So does passing the law not have an impact?

Israel’s legal establishment wished to present a list of decisions in which the Supreme Court overrode the executive to showcase its independence and demonstrate that the ICC’s intervention is not necessary here. Now, after the reasonableness standard repeal, it can still make that argument, but the question is much less clear.

Would this then be unfair when the ICC has found the legal system of Guiana, which supports significant corruption and places limits on judicial independence, to be adequate?

Sure it would, but it is not the only choice.

Some of those saying the legal establishment is blowing hot air correctly point out that even if the ICC gives a free pass to the IDF, Israel may have a problem with war crimes probes on settlements.

But, the argument returns: Wouldn’t it be better to get that free pass and then have only one issue to deal with? At the end of the day, many of these issues come back to world view.

Those who support gambling with the ICC, alternately assume that the ICC will be out to get Israel no matter what and so should be ignored, while also assuming that no EU states will arrest IDF officials if ordered to do so by the ICC, should they be charged and tried.

The legal establishment does not believe the court is giving Israel a fair shake, but it also does not assume that the cause is lost from the start. It is also quite worried that EU countries would honor an ICC order to arrest IDF officials.

The only way to know is to wait and see how Netanyahu’s gamble plays out.