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20 May 2024updated 22 May 2024 6:49pm

The ICC’s milestone decision

How the court’s move to seek an arrest warrant for Benjamin Netanyahu will hurt – and possibly help – him.

By Neve Gordon

On Monday 20 May, the chief prosecutor of the International Criminal Court (ICC), Karim Khan, announced that he was seeking arrest warrants for Benjamin Netanyahu and Hamas’s leader Yahya Sinwar for war crimes and crimes against humanity, as well as other Israeli and Hamas leaders.

Neve Gordon, the Israeli scholar and professor of human rights law at Queen Mary University of London, spoke to the New Statesman about what this means for Israel, the US and the war in Gaza.

Megan Gibson: The ICC chief prosecutor is seeking arrest warrants for Benjamin Netanyahu and defence minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar, Muhammad Deif and Ismail Haniyeh. First, are these requests likely to be granted from the ICC panel? What is the timeline?

Neve Gordon: I think they’re highly likely to be granted. I don’t know any case that was not granted in the past. And as for how fast, it’s not clear – it can be a matter of days but it can also be a matter of weeks and sometimes months. But I think it’s going to happen, and it’s going to happen fairly soon.

MG: How significant is this for Israel?

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NG: It’s very significant. I think if we look at the history of arrest warrants, I think it would be very difficult to disagree with any arrest warrant that the ICC has issued. And therefore, I think it would be kind of an outlier to say, “oh, but this one is wrong”. Given what we have seen at the ICJ and given what we have seen by numerous human rights organisations, like Amnesty and Human Rights Watch, I think the case is going to be robust. And so suddenly, Netanyahu, who has been Israel’s longest serving Prime Minister, and [Gallant], its defence minister [are in a situation where] 124 countries are obliged by law to issue arrest warrants if they land in those countries. So this will limit their ability to travel dramatically. This will put them together on a list with people that we consider major war criminals. And this will put Israel on a list with pariah states. So I think it’s in terms of the court of public opinion, it’s major, and together with the ruling next week of the ICJ, I think it’s putting Israel more and more in a corner.

MG: This marks the first time the ICC has targeted a close US ally. How significant is it for America?

NG: I think it puts considerable pressure on the United States, because the United States has been speaking with two voices. On the one hand, it’s saying that Israel is not doing enough to protect civilians. It’s saying that Israel should not enter Rafah, it is saying that Israel should distribute more humanitarian aid and it’s saying we will not send 2,000 bombs. At the same time, it’s continuing to pass billions of dollars of weapons to Israel, and not being assertive enough on what it is allowing Israel to do. And I think this will also have an impact on the Biden administration. One more thing that Israel is planning to do is to put pressure on the US Congress and on the US Senate to kind of boycott the ICC, and to boycott Khan. There’s this whole attempt to create a backlash against the ICC. 

MG: Have you seen anything to indicate that this pressure from Israel is influential?

NG: Well, it is working in certain circles within the Republican Party already. A group of Republican senators has cautioned the ICC prosecutor that if he issues these arrest warrants, they will try to legislate sanctions against him and against his family. I don’t think that’s going to fly. But I know that there is traction within certain lawmakers [circles] in the United States. Yes, definitely.

MG: Within Israel, how likely is it that a majority of people will see this as the international community using lawfare against Israel and targeting it unfairly? Or are more people more likely to feel that Netanyahu has betrayed the state?

NG: I think that’s a great question. Because in Israel, there is a whole constituency that defines itself by being anti-Netanyahu. Those are the people that protested for 35 weeks against the judicial overhaul, and they hate him. I mean, the Netanyahu supporters are going to continue being supporters, regardless of the ICC. The question is what about the other half of the Jewish population that hates Netanyahu – will they be happy with these arrest warrants or not? I think most of them will not. 

I just flew in from Israel late last night. The claim now is that we are the victims of this kind of international Palestinian mobilisation against us. And [the ICC warrants] is another part of this international mobilisation against us. So even as Israel’s carrying out genocidal violence in Gaza, the self perception is still a victimhood. And this will be interpreted as part of that, even by those that really dislike Netanyahu and want them out of power. So within Israel, it might, ironically, play in his favour.

MG: There’s been talk that the ICC was preparing to do this for weeks now. How will Israel have prepared for this happening?

NG: So I think it has been preparing for a while. [With] the Republicans I mentioned [talking] about sanctioning Khan and his family, that is, of course, part of the pro-Israel lobby, AIPAC, in the United States. They’ve created a committee now within the Ministry of Foreign Affairs, about how to push back against the ICC. This committee is made up of intelligence people, lawyers, diplomats, and they’re trying to push back against the arrest warrants. And trying to convince other European countries not to accept [the arrest warrants] and to sanction the ICC. But I think there’ll be very little traction with this among European countries, and even among the wider United States. I think politicians realise that they cannot start saying, “Yes, this is great that the [ICC] issued an arrest warrant against Putin, but it’s bad that they issued an arrest warrant against Netanyahu.” Either you trust the ICC with the arrest warrants that they issue, or you don’t trust it. Once European countries start sanctioning the ICC because of the arrest warrants they don’t like, that’s the end of the ICC. 

MG: You mentioned the ICJ. What strikes me about the ICC charges is how strong the language is. The charges against Netanyahu and Gallant include “causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict”. Could these arrest warrants impact South Africa’s case at the ICJ against Israel?

NG: That’s a great question. I think in one sense, no, because the evidence has been submitted [at the ICJ] and they’re now deliberating. But I think there is a kind of building block effect going on. The ICJ is one block. This is another block. And I would add to it also non-legal things like the protests, certainly encampments in universities. And so there’s a story that is being created.

If we’re looking at influence, I think actually the influence is the other direction. The [ICC investigation], we need to remember, this investigation began in 2021. And yet, [the charges are not focused on] West Bank communities being ethnically cleansed. It’s not about apartheid. It’s focused on Gaza. And it’s focused on mainly the claims made in the genocide case against Israel. So I think that the ICJ has influenced and created pressure on the ICC. 

MG: How significant will these arrest warrants be for the leaders of Hamas?

NG: I think we need to think about it a bit differently between [the leaders]. So we have Deif and Sinwar in tunnels, and so long as they are underground in Gaza – you know, it’s not as if they’re travelling anywhere. It will not have much significance for them in the short term. And [no one] in the West is really surprised by [the arrest warrants against them]. So in terms of public opinion, it’s not a kind of a blow.

With Haniyeh, the situation is different. Haniyeh doesn’t live in the Gaza Strip. He’s probably between Qatar and Turkey. Qatar and Turkey are not signatories to the ICC. But still, I’m sure there’ll be pressure on them to arrest him. I think there is a chance that he could be arrested at a certain stage. He also, unlike Gallant and Netanyahu, doesn’t have a state that is designed to protect him. He’s a guest in other states. And so his situation in many ways is more precarious. 

MG: I have just one final question. There was a panel of legal experts that advised Khan on the application, including Amal Clooney, among others. And in their statement today on why they supported the application, they wrote, “There is no doubt that the step taken today by the prosecutor is a milestone in the history of international criminal law. There is no conflict that should be excluded from the reach of the law.” And I was just wondering if you felt the same way? Is this indeed a milestone?

NG: I think that insofar as Israel is one of the closest allies of the United States and Britain, I think it is a milestone. The ICC has been called “the African Court”, because the vast majority of people that they have prosecuted and issued arrest warrants for are from Africa. And then it’s [focused on those whom] the West have considered enemies, right? Whether it’s in former Yugoslavia or whether it’s Putin and his generals. 

And suddenly, a major ally of the United States gets an arrest warrant. It’s as if “our” side can [also] be committing egregious violations, egregious war crimes, crimes against humanity and genocide. And that is a major difference.

[See also: The shocking death of Iran’s president]

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