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Amichai Cohen
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Make no mistake: ICC arrest warrants would harm Israel

It will take concerted diplomatic efforts to stop legal proceedings if international indictments of Israelis become real
The International Criminal Court in The Hague, Netherlands, on March 31, 2021. (AP Photo/ Peter Dejong/ File)
The International Criminal Court in The Hague, Netherlands, on March 31, 2021. (AP Photo/ Peter Dejong/ File)

According to media reports and statements from politicians, the International Criminal Court (ICC) may issue arrest warrants against senior Israeli officials in the coming days.

This possibility constitutes yet another stage in the international legal fight in which Israel is currently embroiled, in addition to the war on the ground in Gaza. This legal battle encompasses a long list of legal proceedings, from South Africa’s complaint against Israel at the International Court of Justice (ICJ). Those include legal cases brought in courts in various countries, such as Germany and the Netherlands, in efforts to bar the governments of those countries from selling arms to Israel. They also cover criminal complaints made in various countries against IDF soldiers and officers, claiming that they have violated international law. Currently, this struggle is being waged in airconditioned halls in different countries, as well as online, but it may shortly come to affect the outcome of the conflict in Gaza no less than the battles on the ground.

Of all the developments mentioned above, and despite the severe and historic nature of the accusations of genocide made in the case submitted to the ICJ, the proceedings with the potential to cause the most damage to Israel are those at the ICC.

First, the ICC can cause great difficulty to specific senior Israeli officials against whom warrants are issued. The ICC was created to act against individuals, not states, and it issues indictments against those suspected of serious violations of international law, such as war crimes, crimes against humanity, and genocide. It has the power to issue warrants for the arrest of individuals suspected of war crimes, and can force more than 120 states (the signatories to Rome Statute of the International Criminal Court, by which the Court was established) to execute such warrants. It is reasonable to assume that if warrants are indeed issued, they will be against the most senior officials in Israel — the prime minister, the defense minister, Benny Gantz, as member of the war cabinet, and the IDF chief of staff. Such a step would significantly restrict the international movement of these individuals: should they set foot in countries such as Canada, Australia, Britain, Germany, or the Czech Republic, they would be liable to be arrested and then transferred to the ICC detention center in The Hague.

But the threat to the individual freedom of movement of this handful of senior officials is just the tip of the iceberg of the damage to the State of Israel, if such warrants are indeed issued.

One form of wider damage would be to Israel’s international image. Arrest warrants have been issued by the ICC against officials in countries such as Russia, Libya, Sudan, and the Central African Republic. The Court has never issued warrants of this kind against officials of democratic states. Thus, by being bracketed with those states whose officials have been the subject of arrest warrants, Israel would suffer huge reputational harm. It would run the risk of being labeled a “pariah state,” alongside various other dubious regimes, to the extent that many democratic countries would deem contact with it or with its representatives to be undesirable. For example, collaborations with Israeli scientists, to say nothing of arms sales to Israel, could be severely affected, as could many other areas of activity.

A second form of wider damage relates to the possibility of criminal cases being brought in different countries against a large number of Israelis who were involved in the war in Gaza and not just against senior officials. It should be noted that even after the establishment of the ICC, many states also retained the authority to bring individuals to trial who were accused of serious breaches of international criminal law, based on the principle of “universal jurisdiction.” According to this principle, every state visited by a person suspected of such violations can bring that person to trial in their own justice system, even if the alleged crimes were committed in another country. Among other instances, universal jurisdiction can be enacted against those suspected of war crimes.

Until now, only limited use has been made of universal jurisdiction against Israelis. With the exception of several cases in the early 2000s, states have preferred to leave investigations into suspected breaches of the rules of war in the hands of Israel itself. The inherent assumption was that the Israeli justice system should be trusted to carry out its own investigations into possible serious crimes. But if the ICC demonstrates willingness to put Israelis on trial, then the dam could burst. Issuing arrest warrants would indicate that the Court has lost faith in the Israeli investigative system, and other countries will follow its lead. It is likely that criminal prosecutors in various European countries would be unable to withstand public pressure, and the number of cases brought against Israelis could grow substantially. Senior IDF officers, Israelis with dual citizenship, and senior officials in government could face indictment.

Theoretically, it could be argued that there is no justification for the ICC to issue arrest warrants, and that the Court is being swayed by wider anti-Israeli sentiment, despite the war having been started by an appalling terror attack. But if the possibilities of international sanctions and widespread indictment of Israelis become a reality, this theoretical debate will immediately become a very real issue for many Israelis, who stand to become caught up in complex legal proceedings that will greatly disrupt their lives.

The only way to deal with this prospect is for the State of Israel to use the various foreign policy tools at its disposal. Only a concerted and professional diplomatic effort, with significant help from Israel’s traditional liberal democratic allies such as the United States, the UK and Germany  vis-à-vis the ICC, can stem the tide that Israel could find itself facing. I fear that, unfortunately, certain members of the current government, who have signaled a disdain for diplomacy, and for the shared values of liberal democracies would not be the proper partners for such an endeavor.

About the Author
Prof. Amichai Cohen is a Senior Fellow at the Israel Democracy Institute, where he serves as the Director of the Amnon Lipkin-Shahak Program on National Security and Democracy, and is a lecturer in the faculty of law at Ono Academic College.
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