How Israel can fight back against ICC's arrest warrants for its leaders – opinion

The arrest warrants which the International Criminal Court in The Hague issued against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant are ridiculous, absurd and baseless.

They stem from the lawfare and diplomatic campaigns the Palestinians have been waging against Israel for the past two decades, and from the ICC’s clear-cut anti-Israel bias. 

The legal debate on the warrants is too narrow. Israel should employ political, diplomatic and economic tools to cancel them. There are several steps that the Israeli government must take, both in the international and the domestic arenas, and there are some that must be avoided.

What to do in the international arena: In light of the ongoing bias in the ICC’s activity – which rejected all the Israeli claims before it, made a shocking parallel between Israel’s leaders and the Hamas terrorist leaders, and after their assassination, did not see fit to indict any of their heirs – there is no room to cooperate with the Court, or to appeal the warrants before ICC’s higher chamber. 

Israel should mount a worldwide aggressive delegitimization campaign against the ICC and its flawed practices. The appropriate model is the struggle against the 1975 UN resolution that equated Zionism with racism. Israel damaged the reputation of the UN, until it abolished the infamous resolution in 1991.

Necessary actions

First, Israel should produce a legal document that will refute every claim the prosecutor made, and the dubious and false “evidence” on which he relied. 

Second, based on this document, Israel should persuade states to suspend their membership in the Rome Statute that established the ICC, thereby exempting them from the obligation to detain Israelis; or alternatively, to announce, as Hungary did, that they had no intention of enforcing the orders. 

Third, coordinate with the incoming Trump administration to impose harsh personal sanctions against the ICC’s prosecutor, aides, and judges.

During his first term, president-elect Donald Trump imposed such sanctions on then-prosecutor Fatou Bensouda, who was determined to investigate alleged war crimes committed by the United States in Afghanistan. Republican Senator Lindsey Graham announced that he intends to bring legislation to Congress that would also impose economic sanctions on any state that announces its intention to enforce the warrants.

ON THE domestic front: According to its charter, the ICC is a “last resort” in the absence of an independent judiciary in a country accused of war crimes. It is the “principle of complementarity” which states that the court may only exercise jurisdiction when national legal systems fail to do so, when it is demonstrated that they are unwilling or unable to genuinely carry out proceedings. 

The systematic weakening of the judicial system in Israel, and the attempts to undermine its independence, played into the hands of the hostile ICC.

Ministers and Knesset members of the coalition must immediately cease their unbridled attacks on the Supreme Court and Attorney-General Gali Baharav-Miara. At the same time, the government should soon establish a “State commission of inquiry” to investigate the October 7 massacre, as well as the entire conduct of the government and the military during the war against Hamas. Such a move would strengthen the “principle of complementarity,” and help to nullify the legitimacy of the arrest warrants.

Foreign Minister Gideon Sa’ar made a mistake by canceling the visit in Israel this week of Dutch Foreign Minister Caspar Veldkamp. Sa’ar took this action in retaliation for Veldkamp’s hasty statement that Holland will obey the warrants and arrest Netanyahu or Gallant, should they land in the Scandinavian country. 

Instead, Israel could have used the opportunity to present its case against the ICC and ask Veldkamp to demand an explanation from the court before deciding whether to obey the warrants.

Since there is a reasonable possibility that the ICC has already issued secret arrest warrants for senior Israeli government officials or military officers, the Knesset should enact a law like the August 2002 “American Service-Members’ Protection Act,” which authorizes the US president to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” 

This authorization was nicknamed “The Hague Invasion Act,” because it authorizes the use of force, such as an invasion of The Hague where the ICC is located. Subsection (b) of the act specifies that this authority shall extend to American allies including Israel.

By enacting its own similar law, Israel will declare that it has no intention of abandoning Israeli elected and appointed officials or military officers should they be arrested anywhere in the world. A robust combination of all the aforementioned tools is likely to create heavy pressure on the ICC to revoke its unfounded and outrageous arrest warrants.

The writer is a professor of international relations at Bar-Ilan University.