The Third Act has Begun: What the ICC’s Warrants Mean for Israel

In a statement that can only be described as dramatic, the Pre-Trial Chamber of the International Criminal Court (ICC) in The Hague announced yesterday (Thursday) that it had unanimously decided to approve the prosecutor Karim Khan’s request to issue arrest warrants against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity. Simultaneously, a similar statement was issued regarding an arrest warrant for senior Hamas official Mohammed Deif, despite Israel’s official reports claiming he was killed several months ago.

There is no doubt that this is a dramatic development, but it should not come as a surprise. The proverbial “gun” appeared in the first act as far back as 2021 when following Prosecutor Fatou Bensouda’s request, the Pre-Trial Chamber ruled that the ICC has jurisdiction regarding the Palestinian Authority and its territory. In the second act, the gun was loaded following the Prosecutor Khan’s announcement of an investigation into the hostilities starting from October 7 and his subsequent request to approve arrest warrants. Now, in the third act, the gun is fired with the approval of the arrest warrants. The only remaining question is how this act will end.

When analyzing the current situation, we must distinguish between the practical and the declarative levels.

On the practical level, the primary significance lies not in the arrest warrants themselves but in their implications. I will say upfront—the chances of the arrest warrants being enforced are slim, as the proceedings cannot progress without the individuals being brought to The Hague. The immediate impact will concern restrictions on the mobility of the Prime Minister and the former Defense Minister and, no less important, on Israel’s reputation and its international relations, particularly its security ties with member states, at a time that is highly sensitive and complex.

On the declarative level, the story is more complicated. These are the first arrest warrants issued by the ICC against political leaders of a Western democratic state, a state whose judicial system is highly regarded internationally. The insistence on “balance” between state leaders and terrorist organization leaders is also quite jarring (to the point of an ironic reference that, in the name of this balance, the court is unwilling to recognize the death of Mohammed Deif).

It is important to state unequivocally—the decisions by Karim Khan to request arrest warrants against senior Israeli officials and the Pre-Trial Chamber’s approval of those requests are neither antisemitic nor pro-Palestinian decisions, nor are they aimed at supporting Palestinian terrorism. These are decisions with one clear objective: to convey that even in the most justified wars, there are limits to what is permissible and what is forbidden, and this is what guides the ICC’s system.

The question of whether the prosecutor has managed to establish a sufficiently strong legal and evidentiary basis to justify these moves is critical. However, a negative answer to this question, even if the decision was based on improper political considerations, does not justify leaping to the claim that the actions are intended to support Palestinian terrorism and the atrocities of October 7. On the contrary, the fact that proceedings against Mohammed Deif continue, despite Israeli claims of his death, underscores the prosecutor’s and the Pre-Trial Chamber’s firm stance against terrorism, war crimes, and crimes against humanity committed by Palestinian terrorist organizations. The Pre-Trial Chamber’s announcement enables recognition of crimes committed and being committed by Hamas, including attacks against civilians, kidnappings, hostage-taking, sexual assaults, torture, and more. To a large extent, the insistence on issuing an arrest warrant against Mohammed Deif allows the prosecutor and the ICC to emphasize that there is no overlooking the crimes committed by terrorist organizations, and it is anticipated that further requests for arrest warrants against additional senior Hamas officials will follow.

This, of course, does not mean there is no issue with the prosecutor’s actions or the Pre-Trial Chamber’s decision to issue arrest warrants. Without delving into the prosecutor’s personal motivations, it is enough to consider the international pressure that has driven (and continues to drive) him to act against Israel to cast doubt on the legal basis underpinning the arrest warrant requests. At the same time, there is no point in burying our heads in the sand or relying on claims of bias. The process is still long, and Israel has additional avenues to oppose the arrest warrants. In my opinion, Israel would do well to continue cooperating with the ICC system and file organized objections, as the potential benefits are significant not only for Netanyahu and Gallant but also for other senior political and military figures who might find themselves facing international arrest warrants.

It is important to remember—we are only at the beginning of the third act. It is currently difficult to predict how the story will unfold, and the various players can still influence the ending.