Israeli diplomacy has to deal with a threat that, in recent weeks, is more worrying than the talks with Hamas and pressure from allied countries demanding compliance with the UN resolution its a cease-fire immediate. According to government sources and Israeli officials who spoke on condition of anonymity to several international media, the men of Tel Aviv are attached to phones to prevent the International Criminal Court in The Hague stand out a arrest warrant for Israel’s top government and military leaders, including the prime minister Benjamin Netanyahu.
The prosecutor’s move Karim Khanexpected this week according to the sources, is linked to the actions carried out by both Hamas and by the Israeli army starting from October 7th. This, in addition to having direct consequences for the people involved (we are also talking about the Minister of Defence, Yoav Gallantand the head of the Israel Defense Forces, Herzi Halevi), would represent a heavy blow to theinternational image of Israel with the risk of multiple indictments for war crimes, genocide e crimes against humanity.
THE INDISCRETIONS – From what we learn, the effort made by the Israeli leaders to avoid arrest warrants is maximum. At the center of operations, according to what is known to Times of IsraelThere is the National Security Councilbut the Foreign Ministry. The pressure on the magistrates in The Hague does not end within the borders of the Jewish state, but would also come from Tel Aviv’s allies. One above all: the United States. In this context, the accusations made by the prosecutor, who in the past had only confirmed that he was carrying out checks, must be precise and unassailable to avoid becoming the victim of a campaign of pressure and discredit by those who try to cover up any type of investigation into what happened between Hamas and Israel from 7 October onwards. It is no coincidence that Karine Jean-Pierre, spokeswoman for the White House, has already announced that the US does not support “the International Criminal Court’s investigation against Israel. We don’t believe he has jurisdiction.”
The arrest warrants, however, would not only target Israeli personalities. Since the Court has jurisdiction in the Palestinian Territories, it also judges the actions of all entities connected to them. Thus, although committed on Israeli territory, the massacre carried out by members of Hamas October 7 could still be the subject of investigation by the ICC, without excluding, moreover, other actions carried out in the following days and which could be considered war crimes: for example the capture of civilian hostages taken to the Gaza Strip.
Also suggesting that the rumors have some basis are the words of Netanyahu himself who declared on social media that any intervention by the International Criminal Court “would create a dangerous precedent which threatens the soldiers and officials of all democracies who fight the wild terrorism and wanton aggression.” Apparently unmotivated words, but which in light of what emerged in the media could find an explanation. “Under my leadership – he added – Israel will never accept any attempt by the International Criminal Court to undermine its inherent right to self-defense. The threat to kidnap soldiers and officials of the only democracy in the Middle East and the only Jewish state in the world is scandalous. We will not give in.”
BECAUSE THE ICC HAS JURISDICTION – Although Israel, like the United States, is not a signatory to the Rome Statute of 1998 which allowed the birth of the Court in 2002, those who are part of it are Palestine. Precisely Israel’s military campaigns in the Gaza Strip, first Cast Lead and then the even bloodier one Margin of Protectionthey pushed the Palestinian National Authority to ask the United Nations to be able to join the group of 124 States that have adhered to the Statute, agreeing, among other things, to facilitate the Court’s investigations on their own territory, in this case the one recognized by the United Nations according to the borders prior to 1967. Thus, from 1 April 2015, after the confirmation of the then UN Secretary General Ban Ki-Moon, Palestine officially joined the International Criminal Court. Even then the decision angered Israel which, in retaliation, decided to freeze 106 million euros of taxes collected on behalf of the Palestinian authorities.
The jurisprudence of the ICC provides that acts carried out on the territory of a signatory country can be investigated, but it is sufficient for only one to be identified within the same context to be able to extend the investigations also to those connected to it carried out in the territory of Third countries. This is why Prosecutor Khan was able to investigate the actions of Israel, which carried out the alleged violations in Gaza, and above all he could also prosecute the leaders of Hamas who carried out summary killings of civilians in third territory, namely Israel, but then ‘moved’ the crime to Palestinian territory by bringing the hostages to the Strip.
THE DIFFICULTIES OF THE ICC – If the ICC decides to issue an arrest warrant against the Israeli and Hamas leaders, arrive at concrete consequences and tangible things won’t be easy anyway. The Court does not have its own police force, but relies on the collaboration of the signatory states. Since Israel is not a member of the Rome Statute, Netanyahu and the other leaders would not run any risk as long as they remain at home or in third countries with respect to the Statute, a bit like what happens for Vladimir Putin, also reached by an international arrest warrant. What is certain is that their possibility of movement would be greatly affected and, above all, it would be complicated to think of governing a country without being able to go to most foreign countries, with their own international reputation which would suffer a severe backlash.
The one who is not particularly worried about its international reputation is Hamas. But even in this case, despite operating within an entity that is part of the Rome Statute, it is difficult to think of any concrete repercussions on its leaders. Many of them are abroad, in friendly countries that are not under the jurisdiction of the Court, while those remaining in Gaza find themselves in an unprecedented situation: being not only geographically, but also politically detached from the rest of the Palestinian Territories, the Strip is not governed byAnpbut precisely from Hamas which, therefore, is unlikely to proceed with the arrest of its leadership.
The question relating to possible also remains to be resolved on-site investigations. The Palestinian authorities would have an obligation to cooperate with the Court, providing access to the territory to carry out investigative activities, including possible arrest warrants. It is clear that in Gaza it would be almost impossible for the Palestinian authorities to cooperate with the Court, even if they were willing, without taking into account the difficulties in accessing the territory due to the blockade imposed by Israel.
POSSIBLE VIOLATIONS – There are numerous incidents that could be investigated by the Court. Obviously, if you look at it from Hamas’ point of view, the violence committed during the attack on October 7 and the next taking of civilian hostages they are actions that fall into the category of war crimes. To them, then, should be added, if proven, torture o violenceeven of a sexual nature, reported against prisoners during their stay in the hands of the Islamist militiamen of the Strip. Then there is the question relating to the survivors of the attack: for all the victims who remained alive but seriously injured Hamas could be held responsible for willfully causing “serious suffering or serious damage to physical integrity or health”. As regards raids carried out on Israeli territory, however, it must be considered that launching attacks against the civilian population not directly involved in a war or attacking their property represents a crime. Without forgetting the possible use of human shields to try to limit the Israeli offensive.
Moving on to the leaders of the ‘Jewish State’, the list of possible crimes is a little longer. First of all, it must be established whether the disproportionate military reaction to the Hamas attack on October 7, with almost 35 thousand victims in the Strip, cannot be considered one collective punishmentdeemed a war crime by Geneva Conventionsin violation of principles of distinction and proportionality. Even in the case of IdfFurthermore, the risk is that they have been committed intentional attacks against civilians and civilian objects, as well as personnel, vehicles and structures of personnel engaged in thehumanitarian assistance. In this sense, it is enough to recall the numerous raids on facilities of the UN Agency for Palestinian Refugees (Unrwa), the attack on the convoys Unicef and the NGO Wckthe bombings on hospitals and health facilities where doctors from international organizations also work, as well as those against ambulances involved in the rescue of civilian victims of the raids. Added to these are attacks on places of worshiplike the numerous mosques demolished by Israeli bombs.
One of the points on which, according to sources cited by the media, the International Criminal Court is focusing most is Israel’s possible voluntary obstacle to the influx of humanitarian aid in the Palestinian enclave. Strategy that may have contributed to voluntarily starve the population violating international human rights conventions. In this sense, in addition to the obstacle to the arrival of aid, the invitations to the population to abandon their homes to evacuate towards the south of the Strip. A transfer that could be considered forced given that it occurred under the threat of new raids.