Amid War in Gaza, Israel Challenged Again, This Time in International Criminal Court 

Weaknesses in humanitarian aid delivery are the basis of war crimes charges against two Israeli leaders 

By Keren Setton/The Media Line 

Israel strongly condemned the decision of the International Criminal Court’s (ICC) chief prosecutor, Karim Khan, to seek arrest warrants for Israeli officials regarding their involvement in the seven-month-long war in Gaza. Arrest warrants would also be sought for leaders of Hamas, the terrorist organization that governs the Gaza Strip, an equation that Israel, the US, and others in the international community immediately denounced. 

Israeli Prime Minister Benjamin Netanyahu slammed Khan’s announcement, saying it was a “moral outrage of historic proportions.” 

“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. I assure you of one thing: this attempt will utterly fail,” said Netanyahu in a video statement released by his office. He also vowed to continue the country’s war on Hamas. 

Although responding with outrage, Israeli officials were not surprised. Reports of Khan’s intentions have been circulating for weeks, along with reports of attempts by Netanyahu’s office to derail those plans. 

The ICC announcement said Netanyahu, Defense Minister Yoav Gallant and three leaders of Hamas—Yahya Sinwar, Mohammed Deif and Ismail Haniyeh—are suspected of war crimes and crimes against humanity in Israel and in the Gaza Strip. 

“Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas,” said US President Joe Biden. 

“This comparison is so unfounded, it will not hurt Israel because it only emphasizes the political nature of the decision,” said Yehuda Shaffer, a former deputy state attorney of Israel. 

Israel has long accused international bodies of a bias against it. Many Israelis repeated that complaint after the ICC press conference in which the accusations were made. 

“This is politically motivated,” said Anne Herzberg, legal adviser of NGO Monitor, a Jerusalem-based research institute. “Netanyahu is not globally popular, so the court figured he was a great target for them because few people would leap to his defense.” 

In recent years, the ICC has come under fire for targeting mainly African countries. This led to a threat by many of them to withdraw from the court. According to Herzberg, the latest development is part of an attempt to placate African member states by showing a non-African bias in prosecuting other nationalities. Up until 2016, only African nationals were charged by the court. In recent years, the ICC has investigated claims of US nationals committing war crimes in Afghanistan. In 2023, the court issued a warrant for the arrest of Vladimir Putin for crimes allegedly perpetrated in Ukraine. 

A panel of three ICC judges will decide whether to issue the warrants. Arrest is not imminent for any of the figures. Israel is not a member of the court, but countries party to the Rome Statute of the International Criminal Court could arrest any persons who have a warrant pending against them. 

While the Palestinian Authority (PA) accepted the jurisdiction of the court in 2015, the same year Palestine was admitted as an observer state to the United Nations, Hamas, a designated terror group by the US and the EU, is not part of the PA. Hamas also denounced the warrant request, saying it “equates the victim with the executioner.” 

“The court does not have jurisdiction to go after Israel. It is exceeding its jurisdiction improperly,” Herzberg told The Media Line. “The court does not have any arrest powers and relies on member states to effectuate any arrest warrants. The primary meaning is that Netanyahu and Gallant will not be able to travel to any ICC member states—most European countries, Canada, and Australia.” 

On Tuesday, both France and Spain said they would respect the ICC’s independence and put faith in its investigation. Other countries, such as Italy and Germany, were critical of Hamas and Israel being given the same treatment by the ICC. 

Israel is already facing accusations of genocide brought by South Africa and others to the International Court of Justice (ICJ), accusations it denies. The latest development was another sign of its growing isolation on the international stage. 

According to the Israeli legal team, in Israel itself there are tens of investigations underway, and others pending, against Israeli soldiers regarding their conduct in the war in Gaza. This is relevant both to the ICJ and ICC treaties because of their complementarity clause, which states that those courts can only exercise jurisdiction when national legal systems fail to or are unwilling to carry out proceedings against alleged offenders. 

“This is a core principle of the court which the prosecutor’s office appears to have ignored,” said Herzberg. “Israel is being treated with a double standard yet again.” 

Shaffer said it is unlikely that Israel would change the way it conducts the war. 

“Even before this, there was full attention to international law in the decision-making process in Israel,” Shaffer told The Media Line. “However, this should bring about the creation of a national inquiry committee and increase the investigation into abnormal events, especially into the claims of deliberate starvation of the Palestinian population in Gaza.” 

“Israel has the mechanisms to investigate these claims and after doing so, it should claim that under the complementarity law, there is no room for intervention by an international institution,” he added. 

The Netanyahu government has come under fire domestically for the military blunder that allowed for the surprise attack by Hamas. Many, including members of the government, have called for a national inquiry committee to be established. According to Shaffer, such a committee should not only investigate that failure but also look into Israel’s adherence to international law, in order to “provide immunity from international prosecution.” 

The war began on October 7, when Hamas attacked Israel. Over one thousand terrorists, including some from other jihadi groups, stormed the southern border, stunning the country. In the violent and deadly rampage, approximately 1,200 Israelis were killed, and thousands were injured. Another 250 people were taken hostage, half of them still being held in Gaza, their fate unknown. 

Israel’s retaliation has since been extensive, stating its goal is to remove Hamas from power and release the hostages. It immediately launched an air, naval, and ground offensive. According to the Hamas-run Gaza Health Ministry, around 35,000 Palestinians—the figure does not distinguish fighters from non-combatants—have been killed. The UN estimates over 1.7 million people have been displaced and tens of thousands of homes destroyed. The UN, other agencies, and many countries in the international community have warned of a widespread humanitarian crisis in Gaza, a territory that was already impoverished before the current round of hostilities. 

The UN claims, based on estimates of damage to resources, that the majority of Gazans are on the brink of starvation, a claim that the ICC statement clings to accusing Israel of “starvation of civilians as a method of warfare as a war crime.” 

From the beginning of the war, Israel has been criticized for its handling of the flow of humanitarian aid into Gaza. Israel has denied the accusations made by the UN and others, saying it has placed no restrictions on aid. Israel has accused Hamas of taking the aid for its own loyalists and has highlighted examples of the UN failing to distribute aid. Khan’s application for arrest warrants places the spotlight on the humanitarian issue. 

“This has been Israel’s main strategic mistake,” said Yehuda Shaffer. “Placing limitations on humanitarian aid so that it did not reach Hamas, essentially led to the opposite result that Israel was looking for. The humanitarian aid that did enter, ended up in the hands of Hamas. Israel should have handed out the aid itself. This not only harmed Israel’s image but helped its enemy. It is not too late to fix this.” 

The White House, which was quick to back Israel in the face of the ICC announcement, has also voiced consistent concern over Israel’s handling of the humanitarian aid. Israel and the US have differed on much of Israel’s war tactics, both on the battlefield and regarding the humanitarian aspect. 

Facing accusations, criticism, and international legal implications, Israel is increasingly challenged in the international arena, as it insists its right to self-defense is at stake. 

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