What are the likely repercussions of the ICC’s decision to request arrest warrants for Prime Minister Netanyahu?

Add the International Criminal Court (ICC) in The Hague to the growing list of global institutions that feign righteous indignation when it comes to Israel’s acts of self-defense and look the other way when Israel’s enemies commit terrorist atrocities, including against their own people.

What are the likely repercussions of the ICC’s decision to request arrest warrants for Prime Minister Netanyahu? What measures must Israel take to counter the growing number of countries looking to make it and their prime ministers into pariahs? Will Donald Trump arrest that trend when he takes office? And how did the ICC outfox the Biden administration and a bipartisan group of senators who tried to spare Israel from the brunt of their trumped-up charges?

Lieutenant Colonel Ori Egoz of the IDF reserves had eyewitness experience as head of the legal team in the Southern Command when officers would choose enemy targets to attack in Gaza.

During Operation Protective Edge in 2014, Egoz was on duty when terrorists fired at IDF tanks from positions inside a UNRWA school. An IDF commander noticed something that caused him to hold his return fire.

“You know what the terrorists did?” Egoz said. “They took two kids, about six, and tied them with rope onto two missile batteries that were shooting against the tanks. I saw it with my own eyes. They kept shooting at us this way for three hours until another [IDF] unit came from the back to surprise the terrorists. We did everything we could not to harm those kids, even though we could have been harming the lives of our soldiers.”

Egoz was emotional as she recounted this story to the foreign press last Thursday night, hours after the International Criminal Court (ICC) in the Hague announced it had issued arrest warrants for war crimes and crimes against humanity — not against Hamas, who brazenly use children as human shields, but against Prime Minister Binyamin Netanyahu and former defense minister Yoav Gallant, who have led Israel in war since last October 7, constrained by 24/7 scrutiny and hypocrisy that no other country has ever faced in defense of its citizens. The ICC also issued a token and most likely posthumous indictment on Mohammed Deif, the head of Hamas’s military wing, which the IDF eliminated two months ago, although Hamas never confirmed his death.

Lt. Col. Egoz, a former assistant to the Chief Military Prosecutor and a judge in cases against terrorists in the Judea and Samaria Military Court, describes herself as a liberal, Western, democratic woman. She is a member of Forum Dvorah, an NGO promoting the equal representation of women in key decision-making positions in national security and foreign policy. She’s not your dyed-in-the-wool Netanyahu supporter, but she empathizes with his isolation in the face of global condemnation.

“Never mind whether you voted for him or not, he’s still our prime minister,” Egoz said. “I know people here who don’t necessarily like Netanyahu or his perspectives, but this is not against Netanyahu. This is against a democratic state. We’re all in this together.”

As soon as a three-judge ICC panel announced its charges, Israelis of all stripes joined in condemning the move. That includes Attorney General Gali Baharav-Miara, who has taken a contrarian stance to Bibi in virtually every legal matter before the state’s High Court or under deliberation in the Knesset. She criticized the ICC decision as “baseless, regrettable, and fundamentally legally flawed,” and said that the ICC lacks any jurisdiction in this matter.

The ICC is an international court created under the Rome Statute in 2001 to prosecute war crimes, genocide, and crimes against humanity, mainly in countries run by dictators without an independent and transparent judicial system. That doesn’t apply to Israel, which has a powerful (some say too powerful) judicial system and possesses all the legal tools to investigate and prosecute criminal misconduct.

Since its inception, the ICC has a spotty track record, issuing just 56 arrest warrants and holding 32 trials. It has convicted just six of the 11 men it has charged with war crimes. All were African militia leaders from the Congo, Mali, and Uganda, hardly bastions of democracy.

Some 124 countries have signed onto the Rome Statute, which obligates them to comply with ICC rulings, to arrest and extradite people the court serves with warrants, and to provide access to evidence and witnesses. The court only has jurisdiction over member nations. The US and Israel have not joined (nor have China, Russia, or most Middle East nations); therefore, Israel is not legally obliged to cooperate.

The Biden administration has backed Israel’s position, issuing a strong condemnation of its own, but it is tainted by its cooperation with the ICC on other matters. Donald Trump was more forceful against the ICC during his term in office, and now that it has acted against Israel, he will add the ICC to his growing menu of international junk food institutions that he may defund or defang when he takes office.

Bibi’s Bigger Problems

The EU’s foreign policy chief, Josep Borrel, said the ICC decision was binding on all EU members, but he’s not long for his job. Borrel’s term in office ends on Sunday, December 1. Estonia’s former prime minister Kaja Kallas, a noted Israel supporter, will replace him.

Aside from that, much of Western Europe is in line with the ICC.

Dutch foreign minister Caspar Veldkamp announced the Netherlands would abide by the Rome Statute: “That means we comply with arrest warrants if someone is on Dutch territory.” Israel’s minister of foreign affairs Gideon Saar immediately retaliated by canceling Veldkamp’s scheduled Monday visit to Israel.

Ireland, whose recent governments have shown increased hostility toward Israel, called the indictments an “extremely significant step.” Still, some Western European countries, including the UK, France, Germany, and Italy, adopted nuanced views, professing support for the ICC without committing to handcuffing Netanyahu if he steps on their turf.

If Netanyahu must visit Europe, he will be welcome in Hungary, where Prime Minister Viktor Orban invited him a day after the ICC ruling.

Eugene Kontorovich, head of the international law department at the Kohelet Policy Forum, a Jerusalem-based think tank, says the fallout from the ICC indictment is likely negligible.

“Bibi doesn’t travel so much anyway, and he doesn’t need to go to countries that are already not safe for Jews,” Kontorovich said. Besides, he added, Netanyahu has plenty to keep him occupied on the home front. “Hezbollah is shooting at us. They’re firing rockets at his house [in Caesarea]. Iran is trying to kill him, and now some fake court in the Hague is seeking to arrest him. Bibi isn’t going to stand trial at the ICC.”

Enforcing an ICC arrest warrant could also backfire on EU countries that have trade relationships and import arms from Israeli defense manufacturers and who rely on Mossad to warn them of any planned terror attacks in Europe.

Professor Kontorovich — who also teaches at George Mason University’s Antonin Scalia Law School, where he established the Center for the Middle East and International Law to train young scholars to take a deeper dive into the intricacies of the Middle East — recommends Israel use that leverage to apply maximum diplomatic counterpressure and negotiate agreements with individual countries not to enforce arrest warrants.

“America also has numerous agreements like that with many countries,” he said.

Kontorovich contends that Israel must be proactive and continue to demonstrate the illegitimacy of the court. It must also cooperate with the incoming Trump administration to seek maximum sanctions against the ICC and those who comply with their rulings. He recommended the Knesset act quickly to pass a law already pending for years that would mirror America’s Armed Services Member Protection Act, nicknamed the Hague Act.

The Hague Act is a counterweight to the ICC’s powers. President George W. Bush signed it into law in 2002 to protect US armed forces stationed overseas to fight the war on terror after 9/11. The Hague Act empowers the president to employ “all necessary means,” including military force, to release US citizens, military personnel, or politicians detained by the ICC. This can be extended to include officials of US allies, such as Israel, that serve American national security interests.

Target Crime, Not People

Even if the personal consequences for Netanyahu remain limited to crimping his travel itinerary, the ICC decision is another phase in the trend of using lawfare to turn Israel into a global punching bag and scapegoating Netanyahu.

Lawfare describes the use or abuse of existing legal systems and institutions to damage or delegitimize an opponent. In the way the game is played against Israel, the goal is to apply enough political pressure to tie Israel’s hands militarily in its battle against Iran and its proxies.

Lt. Col. (retired) Geoffrey Corn addressed the abuse of lawfare at a Friday morning webinar sponsored by JINSA, the Jewish Institute for the National Security of America. Corn is a distinguished fellow at JINSA’s Gemunder Center, a pro-Israel think tank dedicated to advancing US national security interests in the Middle East.

Corn, who is also chair of criminal law and director of the Center for Military Law and Policy at Texas Tech School of Law, cited a speech by Robert Jackson, who served on the US Supreme Court from 1941 to 1954, following a brief stint as President Franklin D. Roosevelt’s attorney general.

“He [Jackson] said one of the greatest dangers of a prosecutor is that you target people and not crime,” Corn said. “In other words, you look for someone you want to get, and then you find a crime to charge them with — as opposed to looking for a crime, and then you go after whoever commits it. This [ICC case] has had this flavor since its inception.”

Corn said that the way the ICC operates, they can’t rescind the charges against Netanyahu and Gallant in the current pre-trial phase. The Court could throw the charges out, but only during the trial. That enabled Kenya’s former president, Uhuru Kenyatta, to get off the hook.

The ICC charged Kenyatta in 2012 with crimes against humanity for post-election violence in 2007 that led to the deaths of 1,200 Kenyans. The ICC dropped the charges in 2014, but only after he appeared before the ICC to fight. For him, it was a risk worth taking, because the Kenyan government took steps to obstruct the trial, refusing to hand over documents vital to the case and bribing and intimidating witnesses not to testify — conduct we would not expect from Israel.

The only way to clear their names is to fight the charges, and since neither Bibi nor Gallant can afford to take that risk, the cases will cause complications for the foreseeable future.

“This will have a profound shock effect,” Corn said. “The ICC ruling reinforces every Israel critic. It will be used as confirmation of the worst narratives of what Israel has done in this conflict, including the IDF, with no real opportunity for rebuttal.”

Trump’s Fight to Win

Israel and the incoming Trump administration are reportedly discussing countermeasures to employ against the ICC once Trump takes office.

Incoming national security advisor Mike Waltz tweeted that the US government has already refuted the ICC allegations against Israel and that “Israel has lawfully defended its people and borders from genocidal terrorists. You can expect a strong response to the antisemitic bias of the ICC and UN come January.”

The current Senate, under Democratic control, can beat Republicans to the punch. However, action in the Senate last week indicates that Democrats have yet to internalize that ganging up on Israel was one factor that enabled Republicans to wrest control of the Senate from them.

Last week, the Senate voted on three measures that would have prevented the US from supplying certain heavy armaments to Israel. While all failed by wide margins, between 17 and 19 progressive Democrats (and independents who caucus with Democrats) voted for one or more of those measures. This means that as many as 40% of the Democrats who will serve in the incoming Senate voted for some form of an arms embargo on Israel, which also shows how the sun is setting on the concept of bipartisan support for Israel.

Senate Democratic leadership has obstructed moves that might have stopped the ICC.

In June, the House passed HR 8282 by a 247-155 vote, calling for mandatory sanctions against ICC judges and senior leadership if they voted to levy arrest warrants against Israeli politicians or IDF brass. The sanctions include the right to block all financial and property transactions on assets ICC people may hold in the US, stop them from entering America, or to reject or revoke visa applications.

The Senate Foreign Relations Committee reviewed the House bill, but Senate Majority Leader Chuck Schumer (D-NY) has yet to release it for a vote on the Senate floor.

During the JINSA webinar, moderator Blaise Misztal asked JINSA fellow Gabriel Noronha for insight into why Schumer is delaying a vote.

Noronha, who formerly coordinated policy and directed communication between the State Department and Congress on Iran, said: “My understanding is this was based on a request from the Biden administration, who objects to these [arrest] warrants, but who also has a long history of cooperation with the ICC.”

Noronha said to the best of his knowledge, Biden administration legal minds, as well as Republican senators, including South Carolina’s Lindsey Graham, played politics with the ICC when they issued an arrest warrant for Russia’s President Vladimir Putin in March 2023, accusing him of illegally deporting hundreds of children from Ukraine. Putin has since dismissed the charge as “meaningless.” The logic behind this was Putin could be charged, weakening his position, while the charges against Israel could be modified through ongoing discussions.

Noronha reported that Senate leaders from both sides of the aisle, including Israeli envoys, spoke with ICC Chief Prosecutor Karim Khan and his team after Khan announced the court’s intention to file charges against Israel in May.

“The ICC had a lot of fair warning, and Karim Khan would have been warned specifically that this would lead to political warfare if they went down that path,” Noronha said.

But the ICC decided to plow ahead in a biased manner. Instead of accepting Israel’s offer to visit Gaza and see for themselves the ravages Hamas wreaked on Israeli communities, it declined the offer and instead released a flashy video of Khan, flanked by two of his prosecutors, announcing all of the charges.

Noronha added that the ICC decision breached the good faith effort to work toward a thoughtful compromise, and senators are fuming.

“They believe they’ve been burned, and they believe they’ve been lied to, and that includes, I believe, Majority Leader Schumer and a number of Democrat and Republican Senate leaders who were on these conference calls,” Noronha said. “I’ve been told by their staffers that they were explicitly lied to by Karim Khan and his associates.”

(Khan himself is now facing charges of personal misconduct, and some pundits believe the charges filed against Israel are meant to distract from his legal woes.)

Noronha noted that in Trump’s first administration, when Mike Pompeo was secretary of state, Trump leveled sanctions against ICC officials for prosecuting US soldiers for alleged crimes they committed in Afghanistan.

Assuming Marco Rubio is confirmed as secretary of state, Noronha said he will also show a “similar desire to go aggressively after ICC leadership.”

Until then, Schumer has until the end of December to decide whether to bring the House bill to sanction the ICC to the Senate floor for a vote and get the credit himself for pressuring the ICC.

“I think there is a lot of concern from majority leadership [Schumer] that a future Republican administration would be a lot more aggressive in executing sanctions,” Noronha said. “I’ll be interested to see if Biden proposes narrow countermeasures in the next month without disrupting the entire system, but I suspect the political trajectory is that this will roll over to the next administration.”

On Sunday, Senator Lindsey Graham issued a challenge, warning US allies on Fox News, and naming Canada, Britain, Germany, France: “ If you are going to help the ICC as a nation enforce the arrest warrant against Bibi and Gallant… I will put sanctions on you.”

Noronha suggests that strong sanctions could induce the ICC to moderate its actions and try to return to what he called “a place of cooperation.” Still, he’s not optimistic: “I suspect the next year is going to be a very cold and ugly year in the relations.”

(Originally featured in Mishpacha, Issue 1038)