��������Ƶ

For a country to have any of its leaders issued with an arrest warrant by the International Court of Justice is a low point in its history, especially when the accusations concern war crimes and crimes against humanity. Last week, the ICC issued such arrest warrants for the Israeli Prime Minister Benjamin Netanyahu and the country’s former Defense Minister Yoav Gallant. Despite criticisms of this move, some with more merit than others, it is Netanyahu’s reckless behavior and folly, both in terms of the manner in which civilians in Gaza have been treated throughout the war and of his political arrogance, that have brought this on him and his country.
It was not only Netanyahu and his political allies who have reacted with shock and anger on hearing about the issuance of the warrants, but also opposition leaders who rallied around the two accused to condemn the ICC judges’ decision, in complete denial that across the world those who have witnessed the scenes from Gaza firmly believe that allegations of such crimes should be at least thoroughly investigated. There has never been a suggestion, regardless of how Israel treated the people of Gaza for almost two decades leading up to Oct. 7 last year, that Israel was not justified in pursuing Hamas and other perpetrators of that atrocity. But this was never a green light to destroy Gaza and kill tens of thousands of civilians, including many children, badly injure many more, turn the enclave to rubble, displace most of the population several times over, and deprive them of basic humanitarian aid.
The moral and legal imperatives of ensuring the wellbeing of noncombatants in a war zone are self-explanatory. Nevertheless, had Israel’s government, and first and foremost Netanyahu, behaved with less complacency and taken note of advice from their friends in the international community, they could have saved themselves these indictments. For instance, the ICC judges have found that there are reasonable grounds that starvation as a method of warfare was used during the conflict. This is a serious accusation of an act that was preventable, unless the accused believed, as alleged, that punishing the entire Gaza population was one of the aims of this war, or they showed extreme lack of judgment, despite being warned. As a matter of fact, there was also an opportunity to drive a wedge between Hamas, who have only ever brought calamity to Gaza, and the rest of the population by sparing their lives and treating them humanely. This is a case where morality and expediency could have been complementary, instead of the latter path taken at the expense of the former.
One of the complaints that Israeli politicians level against the ICC is that it has created equivalence between a democratic state and a terror organization by issuing arrest warrants for representatives of both at the same time. This is not necessarily the case. It is the same war, but not the same accusations that apply. There is no suggestion that democracies cannot commit war crimes and crimes against humanity; the opposite has been tragically on display too often in recent decades.

The ICC arrest warrants have provided Netanyahu with more of the toxic fuel that his politics require.

Yossi Mekelberg

Furthermore, Netanyahu and others claim that other democracies, such as the US, UK, and Venezuela, have been let off the hook after being accused of war crimes, despite evidence to the contrary. Here is where Israel’s domestic divisions and the government’s arrogance have landed it in hot water. The Rome Statute, the treaty that established the ICC, recognizes the principle of “complementarity.” This means that if a state linked to the alleged crimes genuinely conducts investigations into such allegations or prosecutes for the same crimes, the court will defer to this state and proceed no further with the case.
The statute is also based on the assumption of an independent judiciary. Back in June, Attorney General Gali Baharav-Miara sent a letter urging Netanyahu to end the procrastination over the establishment of a state commission of inquiry, first for the obvious reasons of the need for accountability, and to draw lessons from the disaster of Oct. 7 and its aftermath, but also because such an inquiry would have fulfilled the “complementarity” requirement and most likely shelved the request for ICC arrest warrants.
However, Netanyahu is terrified of such an inquiry, for what are the chances of him surviving in power following the findings of an investigation? His fear of facing the Israeli court in his corruption case is much greater than the prospect of one day facing the judges of an international court.
Having said that, it cannot be denied that the ICC’s pursuit of justice might, at least in the short run, have serious adverse consequences. The requirement to go after any leader or country that has committed war crimes and crimes against humanity needs no elaboration, but the main efforts in this case should first have been focused on reaching a ceasefire followed by a permanent cessation of hostilities. This might prevent the creation of even more victims of this war, but the ICC’s decision might sadly achieve exactly the opposite. It has already caused a split within the EU, and between several of its member states and the US.
Bringing about a ceasefire requires the EU and the US to work in tandem and with a sense of urgency, not to quarrel over this ICC decision. Moreover, the Israeli opposition felt it had no choice but to defend Netanyahu, as otherwise it could have been accused of being insufficiently patriotic and cynically using this development to unseat the Israeli leader. But counterintuitively, these arrest warrants have made it more difficult for Netanyahu’s political rivals to oppose the war and demand a ceasefire. Nothing strengthens Netanyahu and his bunch of populist ultranationalists more than when they are able to describe any criticism of Israel as an antisemitic act in support of those who are willing to destroy the country. Netanyahu evoked the memory of the 19th-century miscarriage of justice in the case of the Jewish army officer Alfred Dreyfus, who was falsely accused of treason — a misuse of his memory and victimization, as Netanyahu is deplorably perverting the notion of antisemitism and the memory of the Holocaust.
Regrettably, the ICC arrest warrants have provided Netanyahu with more of the toxic fuel that his politics require. With the support of the US, Hungary, and the Czech Republic in his rejection of the warrants, his position has been strengthened and might result in prolonging the war.

• Yossi Mekelberg is a professor of international relations and an associate fellow of the MENA Program at Chatham House.
X: @YMekelberg