The absurd ICC indictments could have been avoided

The November 21, 2024 decision of the International Criminal Court’s Pre-Trial Chamber to issue warrants of arrest for Benjamin Netanyahu and Yoav Gallant for war crimes has justifiably been met with a chorus of outrage across Israel’s political spectrum. Yes, the decision constitutes a double standard. It ignores Israel’s enormous efforts to minimize civilian harm during the Gaza War, as well as the dominant role of Hamas in sabotaging humanitarian aid and using innocent Palestinians as human shields.

Claims that starvation was a meaningful method of warfare and that Israel’s civilian leadership was “intentionally directing an attack against the civilian population” are patently false. The truth is that Israel’s extraordinary efforts to warn the people of Gaza prior to attacks and provide safe zones, produced an uncommonly low civilian/combatant casualty rate – far below the usual 9-1 ratio. It is disingenuous to claim Israel sought to starve the Palestinian people when since the start of the war, over 22,000 trucks containing over 400,000 tons of aid were delivered to Gaza. By the objective standards of humanitarian interventions and compared to other military conflicts, Israel’s efforts stand out as extremely conscientious.

But here’s the thing: being right really is not enough. After a year of relentless warfare and national trauma, Israeli leadership needs to be smart. And Israel’s current government has fallen short.

Reading the ICC’s ruling and the prosecution’s submissions, one doesn’t need to be an expert in international law to realize that, with even a thimbleful of prudence and humility, Israel could have prevented the present outcome. Instead, the government’s obstinacy and folly have resulted in grave consequences: alongside the worst military disaster in Israel’s history, we now have the country’s worst diplomatic fiasco. The international community has indicted the nation’s very ethical foundations. This is an enormous achievement for Israel’s detractors in their delegitimization campaign and efforts to isolate the Jewish state and turn it into a pariah nation.

A missed opportunity for taking responsibility

Calls for establishing an independent commission of inquiry about the antecedents to the October 7th massacre and subsequent military actions emerged soon after the Gaza War began. The precedent was clear: such commissions played a vital role in addressing national crises, healing deep divisions and fostering accountability after the Yom Kippur War; the Sabra and Shatilla massacre, and the Second Lebanon War. Substantively, the proposal made sense. Tactically, it was a no-brainer.

The ICC only steps in when countries fail to investigate credible allegations of egregious violations of international law. Indeed, in August 2024, ICC prosecutor, Karim Kahn justified his request for an indictment stating that “there is no conflict of jurisdiction because there are no relevant domestic proceedings.”

It is ironic that after being dismissed, former Minister of Defense Yoav Galant explained that one of his core disagreements with Prime Minister Netanyahu, besides disputes over Haredi draft exemptions and prioritizing a hostage release, was his insistence on having an independent panel of inquiry. Apparently, he was listening two months earlier when Israeli Attorney General, Gali Baharav-Miara warned Netanyahu that only an independent state commission into the October 7 attack and Gaza war would satisfy the international community probing Israel’s alleged war crimes. Prime Minister Netanyahu, however, decided early on that creating such a body would very likely lead to the collapse of his coalition. His two right-wing coalitional partners, Religious Zionism and the Jewish Power parties, would perceive the move as an unforgivable sign of weakness. Moreover, an independent judicial body might implicate Netanyahu’s own negligence in the tragic events of October 7^th. And so, the Prime Minister stalled and stymied, even though for months, polls indicated that two-thirds of the public support an unbiased review. Once again, Netanyahu preferred his own political interests over the good of the country.

Diplomatic Incompetence

Israel delayed its ground attack in Gaza by six days, fully aware that it was entering a prolonged military campaign. There was ample time to design a humanitarian aid strategy for Gaza’s civilian population. Yet, the present coalition’s reliance on ultra-right-wing elements prevented any serious discussion about how to balance international legal expectations with Israel’s security needs.

From the outset of the war, officials made inflammatory statements that were diplomatically disastrous. Defense Minister Gallant declared: “There will be a complete siege on the Gaza Strip. There will be no electricity; no food; no fuel – we are fighting against animals and we will behave accordingly.” Such rhetoric may have resonated in a country still grieving and seeking vengeance against the unspeakable Hamas atrocities. But a responsible government needed to recognize that alongside the military offensive, a diplomatic battle was underway. Statements openly declaring government policies that brazenly violate international law are suicidal in the international arena.

Adding to the problem, figures like Bezalel Smotrich and Itamar Ben Gvir exacerbated international disapproval with reckless and reprehensible remarks. Smotrich, who serves as a minister in the Defense Ministry, openly expressed views that reject the legitimacy of humanitarian aid. In August 2024, even after a request for ICC indictments had been filed, he insouciantly went on the record: “It may be ‘justified’ to starve 2 million Gazans, but the world won’t let us.” Itamar Ben Gvir, Israel’s minister of internal security just this month called for withholding aid, telling the press that he opposed any form of humanitarian assistance. It wasn’t just rhetoric: Ben Gvir refused police protection for aid convoys attacked by Israeli mobs in January 2024.

Netanyahu is not free of responsibility for such shameful positions. Only a few years ago, he elevated Ben Gvir from political obscurity, to ensure that an unabashedly racist, but allied politician would be elected to the Knesset. Today, completely dependent on Ben Gvir to remain in power, the Prime Minister does nothing to reign him in, even as the police minister continues to undermine Israel’s international standing. Rather, over the course of the most critical diplomatic year in Israel’s history, Netanyahu appointed three inexperienced and inarticulate politicians to serve as Foreign Minister in order to shore up his political base.

By March 2024, leading Israeli civil rights organizations felt that the government’s policy was not meeting international standards, filing a petition to the High Court of Justice. Though unsuccessful, mounting pressure from the Biden Administration ultimately forced Israel to increase humanitarian aid or face an arms embargo.

None of these events and dynamics were lost on a hostile ICC prosecutor and his team. The right-wing coalition played into their hands. Dozens of irresponsible statements by coalition leaders lent credence to the erroneous claim that Israel intentionally limited or prevented medical supplies and food from getting into Gaza. This led to an indictment that blames Israel for forcing doctors to operate on wounded and carry out amputations on children without anesthetics or claims that the Defense and the Prime Minister sought to starve the civilian population in Gaza into submission.

A Path Forward

Notwithstanding bipartisan American condemnation of the ICC’s indictment, Israel faces a stark reality: Israel’s Prime Minister will be unable to visit most countries in Europe, including longstanding allies like France, Great Britain and Canada, without risking arrest and extradition to the Netherlands to be tried for war crimes. This level of international isolation is intolerable.

The only plausible way forward toward nullifying the indictments involves the creation of an independent commission of inquiry into the war. Prosecutor Karim Khan’s August filing explicitly notes that: “A case would potentially become inadmissible before the Court only if domestic proceedings were to exist with regard to the same individual for substantially the same conduct as alleged before the Court.”

Indeed, in the same document, this pathway is delineated even more specifically: “Israel also remains free to continue its investigations irrespective of the ongoing proceedings before the Court; if the Chamber grants the Applications and if Israeli proceedings sufficiently evolve, either Israel or the suspects named in the Application.” In other words, because such a commission has the ability to single out individual criminal liability (as such commissions have done in the past), Israel could legitimately claim that the ICC’s authority is no longer valid.

Unfortunately, Netanyahu has opted for a political framework for evaluating the war in Gaza. The Prime Minister is suspicious of Israel’s acting Chief Justice, Yitzhak Amit, who would have a key role in establishing such a committee (Justice Minister Yariv Levine for some time has refused to acknowledge Amit as chief justice, even though Amit’s seniority should lead to the appointment automatically, because Levine considers Amit too liberal.)

Instead, Netanyahu is floating a law which would create a six-person investigative committee, appointed by the Knesset – whose membership would require the votes of 80% of legislators. In case of a stalemate, the committee would be evenly divided between opposition and coalition appointees and run by co-chairs. This is just the kind politicization and polarization that an independent commission should seek to avoid as the nation seeks to heal.

The Israeli Army’s chief legal office, the Military Advocate General informed the Israel Bar Association in May that her unit was actively investigating seventy incidents involving offences that may have occurred during the course of the war. It is impossible in such a protracted conflict that mistakes won’t be made and that soldiers, on rare occasions, act inappropriately. The IDF at least is taking responsibility. The world needs to know this.

Transparency as Strategy

After a year of seeing horrendous images from the Gaza War, the world is watching. Israel must act decisively to clear its name. The United Nations may appear to Israel to be a hopelessly biased institution. But it still enjoys legitimacy internationally. When its international court charges the country’s defense and prime minister with deliberate starvation strategies, intentional military attacks against civilian populations and other outrageous allegations it is time to reconsider Israel’s diplomatic strategy. We must do more than play the victim card, cry “Antisemitism” and make comparisons with a “Dreyfus trial” that even Zionist acolytes hardly remember.

Justice Brandeis’s axiom, “Sunshine is the best antiseptic,” remains germane. Condemning the extremist rhetoric of coalition partners and establishing a credible, quasi-judicial commission of inquiry are Israel’s best hopes for emerging from this crisis with dignity and legitimacy.