Even Israel’s allies don’t think its government can handle the Gaza war, prompting moves like settler sanctions, military aid freezes, and now possible ICC arrest warrants and the ICJ order on Israel’s Rafah operation
Tehila Wenger. Haaretz. May 27, 2024
When rumors of the International Criminal Court arrest warrants first emerged last week, Israeli Prime Minister Benjamin Netanyahu quickly took to social media in Hebrew and English to discredit the proceedings.
Among defensive arguments and allegations of injustice, he tucked the following statement into the middle of a video to explain why the ICC has no jurisdiction over Israel: “Israel has an independent legal system that rigorously investigates all violations of the law.”
For the hundreds of thousands of Israelis who took to the streets each week throughout 2023 to protest judicial overhaul attempts, the invocation of the judicial system that Netanyahu’s coalition government worked so hard to undermine takes a special kind of brazen hypocrisy.
Many Israelis, however, are so repulsed by ICC Prosecutor Karim Khan’s implication of moral equivalence between Hamas and Israeli leadership, and so hardened by the ever-mounting evidence of virulent antisemitism rearing its head throughout the world, that the irony of Netanyahu citing Israel’s judicial system as a defense mechanism against the ICC passed largely unnoticed.
This is a mistake. The fact that Netanyahu and Defense Minister Yoav Galant might be subject to arrest warrants issued by the ICC, that there is a new International Court of Justice ruling on Israel’s military offensive in Rafah, and that condemnations have poured in from across the world following an Israeli airstrike killing dozens of Gazans in the middle of a Rafah displaced persons camp, are all signs of growing international skepticism regarding the Israeli government’s ability to handle its war with Hamas – let alone eventually resolve the Israeli-Palestinian conflict in a just, accountable manner.
An independent judiciary has historically been one of Israel’s strongest defenses against prosecution by international institutions. That’s because the ICC functions on the principals of last resort and complementarity: if an independent judiciary at the national level is willing and able to investigate serious crimes, then the ICC loses its jurisdiction.
Israel’s Supreme Court serves as one of the only institutional checks on unauthorized settlement expansion and violence against stateless Palestinians. As dis-satisfactory as its limited role has been in the eyes of most Palestinians (and some Israelis), the Israeli court system’s past decisions to overturn major settlement legalization legislation and intervene on behalf of Palestinian prisoner rights have made it a target for hardline politicians like Simcha Rothman and Bezalel Smotrich.
We are witnessing Israel’s allies becoming increasingly fed up with catering to the political sensitivities of our far-right, intransigent government. The Israeli-Palestinian conflict is no longer a localized irritation, to be contained and even ignored. It is causing a massive loss of life and harm, has put the Middle East on a knife’s edge and is exacerbating tensions around the world, with resounding internal political consequences for the United States, Europe, Jordan, Saudi Arabia, and others.
All of the major world powers are determined to force Israel back to the negotiating table. The carrots floated in front of the parties from the past few years are quickly turning into sticks: discussion of economic incentives and regional normalization treaties are not nearly as prominent or impactful as the prospect of settler sanctions, military aid freezes, and now ICC arrest warrants and the ICJ order concerning Israel’s Rafah operation.
U.S. Secretary of State Anthony Blinken is publicly skeptical about Israel’s ability to take the steps necessary to close a Saudi deal: namely, commitment to a two-state solution – a potential transformative agreement for the region. Last week Norway, Ireland, and Spain joined the list of countries that unilaterally recognize a State of Palestine. More are likely to follow.
In parallel to the ICC proceedings, there is another process about the Israeli-Palestinian conflict quietly making its way through the International Court of Justice. While the controversial South Africa case about genocide catches headlines, the ICJ’s upcoming advisory opinion about the status of Israeli settlements in the West Bank and East Jerusalem is in many ways much more critical. It is difficult to prove intent for mass destruction of an entire people in a military campaign operating against guerrilla terrorists in a high-density population center.
It is not difficult to prove that Israeli leadership has no intention of limiting, let alone ending, Israeli military and civilian presence on West Bank territories of contested status. Israeli governments have pushed off making a decision about the status and future of the West Bank since 1967, and world powers are losing patience with the increasingly unstable and bloody consequences of the “status quo.”
After October 7 the Israeli government had a choice between pursuing a war along the old lines of conflict management and deterrence through force, or working on parallel military and diplomatic tracks towards a stronger Palestinian Authority that could replace Hamas and eventually form an independent and peaceful Palestinian state living side-by-side with Israel. The Netanyahu government chose the first option, increasing the likelihood that future Israeli governments will find themselves at the negotiating table facing radicalized Palestinian leadership, without the international support so critical to a strong negotiating position.
The Hamas atrocities on October 7 made Israel’s right to a military defensive response self-evident to the international community. What has since shaken this consensus of sympathy and support is not just the rising mortality rate and sheer scale of human suffering in Gaza: it is the repeated, glaring evidence that Israeli leadership refuses to contemplate any steps towards conflict resolution. The current policy of pursuing “total victory,” without defining diplomatic and political goals that can lead Israelis and Palestinians out of the escalating cycle of bloodshed, has not made Israel stronger. It only confirms the weakness and lack of vision of the individuals who may soon be fugitives of international justice.
Tehila Wenger is Deputy Director of the Israeli branch of the Geneva Initiative, a policy NGO working to increase su
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