Analysis: Potential ICC Indictment of Netanyahu Raises Concerns and Risks

Dan Perry, a former editor for The Associated Press in the Middle East and Europe/Africa, and author of two books about Israel, shares his views in this commentary. For more opinions, visit CNN Opinion.

There are increasing signs suggesting that the International Criminal Court (ICC) is considering indicting Israeli Prime Minister Benjamin Netanyahu and other top Israeli officials for their actions during the conflict with Hamas in Gaza. This potential move could have significant political implications and may be viewed as selective justice that benefits the prime minister.

Dan Perry

Dan Perry

The ICC, created in 2002, is like a club with around 125 countries. Its main goal is to create rules rather than represent true international law. It's a bit unclear how it relates to countries that are not members, such as the United States and Israel.

With a prosecutor's budget of about $185 million, only half of which goes to the prosecutor's office, Israel has a modest budget for prosecuting cases. Despite this, it has only secured a few convictions and has never indicted the leader of a democratic country. The prosecutor's office has targeted figures like Russia's Vladimir Putin, Sudan's Omar al-Bashir, and former Libyan leader Moammar Ghadhafi's son Saif, but not Israeli Prime Minister Netanyahu.

Israel's democracy faces challenges due to the occupation of the West Bank and east Jerusalem, where millions of Palestinians reside. However, the situation in Israel is not comparable to countries like Sudan with its dictatorial regime.

Other democratic countries, like the US and Britain, have also been involved in wars against terrorist groups that have caused significant harm to civilians, similar to the situation in Gaza. These countries, along with coalitions, have fought against organizations such as al Qaeda and ISIS, and have been connected to the conflicts in Libya and Yemen in the 2010s. However, when a country has a functioning legal system, like Israel, the International Criminal Court (ICC) tends to prefer keeping legal matters within the country.

The issue of jurisdiction can be quite complex.

If the ICC has decided to abandon this tradition, there is a significant issue of jurisdiction that arises. This starts with the unusual process through which Palestine was granted admission to the ICC almost ten years ago.

The court operates on the basis of "state consent," meaning it only recognizes states. Although the UN General Assembly did give Palestine non-member observer status in 2012, most major powers and economies, including the US, do not consider it a state. However, there have been recent efforts to change this. The UN has taken steps to give more recognition to Palestinians, and countries like the UK have indicated they may consider recognizing Palestine as a state. Despite this, in 2015, the ICC made the decision to implicitly recognize Palestine by accepting it without consulting the Assembly of States Parties (ASP), which represents ICC member states.

Israeli Prime Minister Benjamin Netanyahu attends the weekly cabinet meeting at the Prime Minister's office in Jerusalem, December 10, 2023.

Israeli Prime Minister Benjamin Netanyahu attends the weekly cabinet meeting at the Prime Minister's office in Jerusalem, December 10, 2023.

Ronen Zvulun/Pool/Reuters

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Furthermore, the ICC is limited to handling cases within the territory of its member states. However, Palestine, if it were to be recognized, does not have established territory. In 2021, the ICC judges determined that Palestine consists of the West Bank, Gaza, and East Jerusalem (which is annexed by Israel) in a majority vote, though not unanimous.

The ceasefire lines of 1949 marked the end of the war during Israel's declaration of independence. The West Bank and East Jerusalem were taken by Jordan, while Gaza was taken by Egypt, but neither country now claims them.

There is disagreement between Israelis and Palestinians. Many Israelis are against annexing the entire West Bank, fearing for the Jewish majority in their country. Meanwhile, Hamas wants all of Israel for the Palestinians. An ICC indictment would mean the court has made a significant ruling on borders.

Lastly, we come to the issue of the charges. In order to accuse Israel's leaders of war crimes, the court would need to determine if Israel's actions were more than necessary in response to the Hamas attacks on October 7.

No matter how the court explains it, some critics will see it as subjective if it focuses on a specific crime rather than the overall situation.

It's important to consider Hamas' practice of using the people of Gaza as human shields. According to established war crimes law, civilian sites can lose their protected status if they are used for military purposes. While it's hard to confirm the extent of this tactic due to limited access for journalists in Gaza, Hamas is known for operating within civilian areas and has been accused of using hospitals and schools for their activities.

Ignoring this issue could give terrorists the impression that they can carry out attacks and seek refuge behind innocent civilians, challenging authorities to risk international arrest warrants. The use of human shields in war is not uncommon, but the scale at which terrorists are hiding in extensive tunnel networks underground is particularly alarming, and the ICC may inadvertently support this dangerous tactic.

It would be illogical for the ICC not to hold Hamas accountable for their actions.

Dan Perry

Furthermore, it would be unreasonable for the ICC not to charge Hamas itself. The invasion carried out by Hamas on October 7, with the clear goal of causing maximum harm to Israelis and the subsequent declaration to repeat such actions, aligns with the UN's definition of genocide outlined in the 1948 Genocide Convention. This definition heavily considers the intent behind such acts. The ICC's jurisdiction is not restricted to officials only, and considering that Hamas effectively governs Gaza, especially in light of Israel's invasion, it is essential for Hamas to be held accountable.

The court has a lot of flexibility, so it's no surprise that politics come into play. One may wonder if the esteemed chief prosecutor, Karim Khan from Britain, is facing some pressure to increase the heat on Netanyahu. Recently, he resisted the pressure from Israel to prevent potential arrest warrants for leaders.

A world that is tired of war

Netanyahu's lack of support for a pathway to a Palestinian state is not a legal issue but a strategic one. This stance may hinder US President Joe Biden's plan to establish a Western-Sunni-Israeli axis to counter Iran and balance Russian and Chinese influence in the Middle East.

The reason behind Netanyahu's opposition lies in his far-right coalition's resistance to restoring control in Gaza to the Palestinian Authority instead of Hamas. This position, which goes against the desires of many in Israel, contributes to global frustration with the ongoing conflict, exacerbated by the high death toll in Gaza.

The Netanyahu factor

The process to actually get to court in Israel can be complicated. Israel may try to delay or disrupt the process by claiming they are conducting their own investigation. This strategy may not be successful since Israel is not a member state, which is important. However, it could still work because mass protests last year halted Netanyahu's attempt to weaken Israel's independent judiciary.

If Netanyahu had successfully undermined the independence of the courts, Israel would lose credibility in having a fair judicial system, a key factor prompting ICC involvement.

If the ICC does decide to issue an arrest warrant against Netanyahu, it would fuel criticism that the court lacks transparency and accountability, with decisions that seem arbitrary and unclear to the public.

Furthermore, this situation could actually benefit Netanyahu politically. The same outcome would occur if the court decides to target Israeli military officials, for instance. By only pursuing justice selectively against Israel, it will support Netanyahu's claims that the case is fueled by antisemitism. This argument will resonate with many in Israel, and opposition parties may feel pressured to support it, especially if military leaders are also facing charges.

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Netanyahu is facing political challenges and would likely lose in an election if it were held today. He seems to be delaying decisions on the war and peace proposals, probably hoping to maintain his government until things change. An ICC arrest warrant could give him a reason to fight back - and it wouldn't stop him from going to his favorite place, the United States.

Israel, along with the region and the world, really needs Netanyahu to step down. It would be unfortunate if the ICC unintentionally made it harder for that to happen.

Editor's P/S:

The International Criminal Court's (ICC) potential indictment of Israeli Prime Minister Benjamin Netanyahu for his actions during the conflict with Hamas in Gaza raises concerns about selective justice and its implications for Israel's democracy. The ICC's jurisdiction over non-member states like Israel is unclear, and its decision to implicitly recognize Palestine without consulting the Assembly of States Parties could set a dangerous precedent. Additionally, the ICC's focus on Israel's actions without considering Hamas's use of human shields or its own potential culpability could undermine its credibility.

The potential indictment could also benefit Netanyahu politically by allowing him to portray himself as a victim of antisemitism and rally support from within Israel. This could further entrench his position and make it more difficult for him to be removed from power, which would be detrimental to Israel's prospects for peace and stability. It is important for the ICC to carefully consider the potential consequences of its actions and ensure that its pursuit of justice is impartial and based on sound legal principles.