Trying to arrest Netanyahu could actually make him more powerful
An International Criminal Court prosecutor seeks to indict Israel’s prime minister — but opponents of the war should be wary of celebrating
An International Criminal Court prosecutor announced Monday that he would seek an arrest warrant for Israeli Prime Minister Benjamin Netanyahu. Photo by Menahem Kahana/AFP/Getty Images
Columnist Dan Perry May 20, 2024
The decision by the International Criminal Court’s chief prosecutor to seek indictments against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant could badly backfire, both by harming the court’s standing and by helping the beleaguered Israeli government, and especially its much-criticized leader.
That doesn’t necessarily mean the decision is wrong. Just that it is far from a clear victory for opponents of Israel’s war.
Central to parsing this development is understanding that the ICC is not a consensual arbiter of international law. It is operated as a club of 124 states that does not include some major pillars of the world order, including the United States, India, China, Russia, Turkey and Israel itself. Only established in 2002, the court’s exact role in the landscape of international intervention remains ill-defined. In more than two decades, it has only issued 46 warrants, 21 of which led to arrests, with only a handful of successful prosecutions.
Within that select club, Netanyahu in particular stands out. The ICC has never before indicted the leader of a democratic country. As the first, Netanyahu would join the likes of Vladimir Putin, for whom the ICC issued a warrant in 2023, on a select list of autocratic world leaders to be targeted by the court.
Putin has not been arrested; it is highly unlikely that Netanyahu will be, either. That knowledge makes prosecutor Karim Khan’s announcement that he would seek arrests of Netanyahu and Gallant alongside three Hamas leaders, including Oct. 7 mastermind Yahya Sinwar, look in a certain sense like a bit of a political circus.
Adding to that sense: According to the ICC’s procedures, Khan must ask a panel of judges to agree to issue the arrest warrants. In the past, indictments have not been announced before judges gave consent. (In theory, the judges can stall on agreeing to the requests or reject them. And even if the warrants are issued, the United Nations Security Council can step in to freeze ICC investigations for up to 12 months, renewed ad infinitum.)
To those who already doubt the ICC’s jurisdiction here — let alone its efficacy — Khan’s breaking of norms risks suggesting that he is trying to pressure judges to agree to his demand. No matter what their next move is, to many skeptical observers, the court will have already lost any claim to credibility.
That’s especially true because the court has in the past avoided indicting Islamic fundamentalist terrorists from the Middle East. The fact that Hamas leaders are included in Khan’s call will help, but it will be easy for doubters to say that Israel is being held to a double standard: After all, the Islamic State, Hezbollah and al-Qaida have all somehow escaped scrutiny, and while the court is believed to have investigated the Taliban for decades, no indictment has materialized.
It is easy to imagine Netanyahu’s response: Why should he lend any importance to what the ICC says, when it has so often failed to investigate some of Israel’s most persistent antagonists?
Netanyahu may in fact be quite pleased at the court’s overreach — exactly because of the opportunity it gives him for bombast. His domestic corruption trial in Israel has largely not hurt him politically. Instead, he has effectively spun it as a witch hunt, a misdirection that enough of the public has bought to keep him in power. With the ICC, he should be able to convince most of the Israeli public that Israel is being singled out — an experience that could bolster his standing, as he spins himself as the leader of an unfairly besieged nation.
Netanyahu is already embracing that rhetoric: In a Monday statement, he called Khan’s announcement a “moral outrage of historic proportions,” saying it “will cast an everlasting mark of shame on the international court.”
“The prosecutor’s absurd charges against me and Israel’s defense minister are merely an attempt to deny Israel the basic right of self-defense,” he added. “And I assure you of one thing: This attempt will utterly fail.”
Most Israeli politicians will give at least lip service to that narrative, and many have already begun.
Those consequences might be judged worth it if there were any possibility that the ICC warrant against Netanyahu might actually, well, do anything. But the court faces massive jurisdictional issues that will cause plenty of ICC member nations to refuse to cooperate with the warrants. It risks becoming an action with no outcome, an appearance of inertia that can only harm the ICC’s international standing.
The primary issue is that the ICC has jurisdiction over cases that have occurred on the territory of member states. Israel is not a member state, and Palestine does not have recognized territory. The ICC effectively decided on its own, in 2021, that Palestine comprised the West Bank, Gaza and East Jerusalem. (The court first admitted Palestine in a 2015 decision by the court alone, without consultation of the Assembly of States Parties, representing ICC member states — another precedent.)
Why, member countries might ask, should they risk a massive backlash by moving against Netanyahu and Gallant, when the actual jurisdiction they have to do so is, at best, shaky?
That’s an especially valid question because there is a clear reason why the ICC has never indicted the leader of a democratic country: The silent policy has been to allow local judicial procedures to take precedence wherever a credible local judiciary exists, which, in Israel, it still does. Indeed, one of the major concerns about Netanyahu’s 2023 effort to undermine the independence of Israel’s legal system was precisely this — the fear that it would expose Israelis to international legal meddling.
Now that meddling has happened, despite the fact that the reform effort stalled.
Governments around the world — even among the member states — have always viewed the ICC with some suspicion, out of fear of this same interference and even overreach. The precedent set today will compound such fears; already, the United Kingdom has spoken out against the move, and it is unlikely to be the only member state to do so.
Plus, if Donald Trump wins back the American presidency in November, it’s reasonable to anticipate he might retaliate against the ICC by taking actions like restricting travel by emissaries and officials. Support for such a move would likely be overwhelming among Republicans.
There will be some immediate consequences for Netanyahu and Gallant if the judges grant Khan’s request. In order to travel to member nations, they’ll need to seek guarantees of safe passage and non-arrest. To Netanyahu, that will likely be a small price to pay for the benefit of being easily able to lambast the ICC to draw focus away from the cataclysmic multi-dimensional failures of Oct. 7, and the problems that continue to plague the war.
Many people have long been convinced that Netanyahu is prolonging the war to buy time, waiting for a deus ex machina to change the narrative. The ICC may have inadvertently given him that thing.
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