Moment of truth approaches for ICC and Israel

Osama Al-Sharif

Nothing is going Israeli Prime Minister Benjamin Netanyahu’s way these days. His genocidal onslaught on Gaza, now in its seventh month, has failed to deliver the decisive victory he promised Israelis after the Oct. 7 attack by Hamas. The US and other Western allies are warning him against carrying out the much-touted Rafah ground invasion. And daily rallies by the families of the captives, who want him to accept a prisoner exchange deal with Hamas, are tearing at an already worn-out Israeli society.
The pro-Palestine protests in American colleges and universities are putting additional pressure on the Biden White House regarding the US’ backing of the war on Gaza, while bruising Israel’s once stellar image in the country. Israel is facing charges of genocide at the International Court of Justice and, to make things worse, pressure is mounting on the prosecutor of the International Criminal Court to issue arrest warrants against Netanyahu, his defense minister and the Israeli army chief.
Interestingly, the Israeli media revealed last week that the ICC’s prosecutor, British-born Karim Khan, could issue these warrants in the coming days. The Hebrew press reported that Netanyahu and his war Cabinet held several meetings to discuss the looming crisis. The prime minister is said to be hoping that the US will do something to make this nightmare go away.
Last Friday, Netanyahu said: “We will never stop defending ourselves. Whereas decisions of the court in The Hague will not affect Israel’s actions, they would set a dangerous precedent threatening the soldiers and officials of any democracy fighting criminal terrorism and aggression.”
Israeli Foreign Minister Israel Katz lashed out at the possibility of the ICC issuing arrest warrants against Netanyahu and other top officials, warning of an antisemitic backlash while slamming the court. He described the possible release of the warrants as “absolute hypocrisy.”
Israel is not a member of the ICC but Palestine was admitted in 2015, granting the court jurisdiction over crimes committed on Palestinian territory. This move was highly controversial, as it raised questions about the legal status of Palestine as a state and the extent of the ICC’s authority in the region.
In 2021, the ICC’s Pre-Trial Chamber ruled that the court has jurisdiction over the Palestinian territories occupied by Israel since 1967. This opened the door for the prosecutor to investigate alleged war crimes and crimes against humanity in these areas. However, while Palestine in 2015 asked the ICC to investigate crimes committed on its territory since June 2014, the court has been slow to take action due to political pressure from Israel.
But after nearly seven months of Israel’s punishing bombardment of Gaza and the horrific death toll, chiefly among civilians — in addition to mounting evidence that famine is being used as a weapon — Khan is being forced to take action. According to British media reports, he has moved to accelerate the ICC’s investigation into alleged war crimes in the Occupied Territories. He has appointed Andrew Cayley, a British lawyer and former military prosecutor, to oversee the court’s investigation.
Khan visited Israel last year and toured the southern settlements that were attacked by Hamas. He also met with the families of Israeli captives. He reached the Rafah crossing but claimed that Israel would not allow him to enter the Gaza Strip.
But his silence over the mounting evidence that Israel is committing war crimes and crimes against humanity in Gaza has been deafening. Finally, in February, Khan tweeted that he was deeply concerned about reports of bombardment and a potential ground incursion by Israeli forces in the southern Gazan city of Rafah. He said that the ICC was “actively investigating any crimes allegedly committed” in Gaza and that “those who are in breach of the law will be held accountable.” He later told Reuters that “this situation is one that I give the utmost priority to. It’s an issue that we’re moving forward on.”
Now, with conflicting reports on whether Khan is about to issue arrest warrants, Netanyahu hopes President Joe Biden will come to his aid. But the US is also not a member of the ICC and it would be detrimental to the court’s credibility if Khan was seen to be backing down simply because Washington does not like what he is about to do.
Believing that Khan’s decisions are not politically motivated would be naive. In March 2023, the ICC issued an arrest warrant against Russian President Vladimir Putin for his alleged responsibility for the war crime of unlawful deportation and transfer of children during the Russo-Ukrainian War. And in March this year, the ICC issued arrest warrants for two high-ranking Russian military officers on charges linked to attacks on civilian infrastructure in Ukraine.
These alleged crimes pale in comparison to the atrocities Israel has committed in Gaza and the West Bank since last October. The speed with which the ICC has moved against Russian officials raises severe questions, as Khan is yet to take concrete action against Israel, even though it has not heeded the International Court of Justice’s January interim ruling that ordered it to stop any genocidal acts and take measures to guarantee that humanitarian assistance is provided to civilians in Gaza.
For decades, Israel has managed to carry out with impunity an endless list of war crimes and violations of UN resolutions and international conventions. It has long relied on the backing of the US and other Western allies. Today, however, we are facing a moment of truth. The horrors coming out of Gaza are too much for even Tel Aviv’s closest defenders to swallow or cover up. More than 14,000 children killed in Gaza is a toxic legacy that can never be justified or brushed under the carpet.
Delivering justice to the Palestinians has become an elusive goal as Israel, with US backing, has kept raising the ante, seeking to kill the two-state solution and cancel their existence. Now, after 34,000 Palestinian deaths, a crossroads is about to be reached: either let Israel off the hook or correct a historical aberration and deliver long-delayed justice to the Palestinians.
If Khan does go ahead and issue arrest warrants against Netanyahu and his top aides, it would result in a political earthquake, not only in Israel but across the globe.
How the US and other Western countries would react to such an event will decide the future of the rules-based international order Washington has been supporting and claiming to enforce.
But if Khan does not do so, which remains a possibility, then the ICC and all relevant international codes and conventions would become meaningless.
The question facing Israel’s allies today is how long will they look the other way as Netanyahu pushes on with his criminal war? Or will there be a moment of reckoning, in which he is told that he is putting Israel’s future in jeopardy and that he must pay the price?