Netanyahu’s possible international arrest order causing alarm in the Israeli government

Israeli authorities are increasingly concerned about the possibility of the International Criminal Court (ICC) issuing arrest warrants for their military and political leaders on suspicion of war crimes.

Some reports suggest that Prime Minister Benjamin Netanyahu could be among them.

The court, based in The Hague, has been investigating Israel’s actions in the occupied territories over the past three years — and, more recently, Hamas’ actions as well. It has the power to accuse and try individuals for the most serious crimes under international law.

Netanyahu called the prospect of senior Israeli figures landing on the ICC’s wanted list “an outrage of historic proportions”, accusing the court of trying to paralyze his country’s ability to defend itself.

But the fact that he has chosen to make such strong public comments on this issue suggests that, behind the scenes, such a scenario is being actively discussed.

Although the ICC has not confirmed anything, when the court’s chief prosecutor, Karim Khan, visited Israel and the occupied West Bank in December last year, his message was clear.

The British lawyer visited the sites of Hamas attacks on Israeli villages near the border fence with Gaza, through which Hamas-led gunmen broke through on October 7.

He also met with political leaders, and traveled to Ramallah to speak with families of Palestinian victims about their experiences in Gaza and the West Bank.

He condemned the violence suffered by civilians on both sides, and promised to investigate the incidents.

“All protagonists must comply with international humanitarian law”, he clarified, in a statement at the time.

“If you don’t, don’t complain when my office is forced to act.”

Khan said the October 7 attacks — in which Hamas-led gunmen killed some 1,200 people, most of them civilians, and took 253 hostages, according to Israeli calculations — represented “some of the most serious international crimes that shock the conscience of humanity, crimes that the ICC was created to deal with.”

In the case of Israel, he emphasized the obligation to conduct its military operation in Gaza in accordance with “clear legal parameters governing armed conflict.”

Israel has been accused of failing to sufficiently protect civilians during its bombings in Gaza, although it insists it takes all necessary measures to avoid casualties.

The Ministry of Health in the Hamas-run Palestinian territory says more than 34,500 people have been killed there since the start of the war, and that many were children.

Khan also highlighted the need for humanitarian aid to reach Gaza, with access to food, water and medical supplies a basic right for civilians “without further delay, and with pace and scale.”

It also urged Hamas not to divert or misuse supplies when they arrived, following accusations from Israel that members of the group were looting trucks and stealing aid, preventing it from reaching the general population.

Israel is not a member of the ICC, and claims the court has no jurisdiction over the country. But the court ruled that since 2015 it has had jurisdiction over the West Bank, East Jerusalem and Gaza, after the Palestinians ratified the ICC’s founding treaty, the Rome Statute, as the State of Palestine.

No Western-style democracy has yet had an arrest warrant issued by the ICC against any of its leaders. If this happens to Netanyahu, he will be the first.

Israelis are particularly concerned about the stigma and potential isolation this would entail.

Michael Oren was Israel’s ambassador to the United States between 2009 and 2013. In an interview with the BBC, he points to the recent case filed by South Africa at the International Court of Justice (ICJ), which accused Israel of genocide against the Palestinian population in Gaza — an accusation that Israel vehemently denies.

In January, the court issued a provisional ruling ordering Israel to take measures to prevent genocidal acts in Gaza, but stopped short of asking the country to halt its military offensive.

“Israel emerged relatively unscathed from this process, but the fact that the process was opened meant that Israel had lost the battle,” he told the BBC.

“They shouldn’t have been opened at all, and it’s certainly a blow to our international standing and our security. Because a country whose leaders are accused of war crimes is more vulnerable.”

Geoffrey Nice, another British lawyer, led the case against former Serbian president Slobodan Milosevic for war crimes at the International Criminal Tribunal for the former Yugoslavia (ICTY).

He emphasizes that the actions of both sides in this conflict are the focus of the ICC.

“Any investigation will not only be by the Israel Defense Forces (IDF) and the political and military leadership, but also by Hamas,” he told the BBC.

He also addressed suggestions that the ICC could come under political pressure to reconsider its decision-making.

“Governments around the world, especially large and powerful governments, are there to protect the interests of their countries.”

“So if they see a trial or an investigation coming… that could cause great damage to their reputation as a country, and if they consider that they can interfere in the trial or the investigation processes to spare them that reputational damage, so they will do it, because they are acting in the interests of their country.”

The timeframe for issuing warrants can vary — sometimes it can take weeks or even months between the time the ICC prosecutor requests the warrant and the judges grant it.

Details can often be kept confidential if it is considered that making them public would lessen the prospect of an arrest.

Such a move against Netanyahu, his political allies or Israeli military commanders would also have practical implications.

For example, it would greatly affect their ability to travel, since Rome Statute signatory countries are required to hand over individuals with arrest warrants against them. But some of these nations have ignored ICC orders in recent years.

Former Israeli ambassador Michael Oren believes, however, that the possible impact would end up being much broader — and would change the narrative of Israeli society.

“In general, [a sociedade israelense] responds to love. Does not respond to aggression. If you want to get concessions from the Israelis, don’t hit them on the head, hug them,” he says.

“All these measures tend to move the pendulum of politics in this country to the right, rather than the other way. It would have a boomerang effect and, instead of opening avenues for a possible diplomatic process, it will probably restrict them.”