Are Criminal Indictments of Israeli Leaders on the Way?

These last few days the press has been abuzz with rumors that the International Criminal Court (ICC) is on the verge of issuing indictments against Israeli leadership, and that Israel is engaged in furious behind the scenes diplomacy to head this off. Of course no one, including me, knows the exact truth about what’s happening, but here is some context and background to help us make sense of what this is all about.

Could it Be True?

First, for many of us committed to the State of Israel, it’s difficult to accept that Israel could be guilty of the types of serious crimes that fall under the jurisdiction of the ICC. It’s a blow to our positive image of Israel and the esteem which we have for the IDF and the morality with which it operates. Yet unfortunately we do have to be open to the possibility that Israel may be committing war crimes in the current Gaza war.

I don’t say this to demean or demonize Israel. The fact is that rather than war crimes are not shocking and rare, but rather ubiquitous and common. It’s likely that there has yet in history been a war that does not include at least some allegations of war crimes.  U.S. forces committed war crimes in Afghanistan and Iraq, just to name a few. Putin has already been indicted for alleged war crimes in Ukraine. Assad and ISIS committed horrific crimes in Syria, Saudia Arabia in Yemen, and the list goes on and on to include countries and conflicts all around the globe.

Since war crimes are committed in seemingly every conflict, it’s hardly unthinkable that Israel committed some too. This is particularly the case since the current war is in response to the October 7th atrocities. When we are furious and enraged we often do things we shouldn’t and that later we regret. To imagine that even after the horrific provocation of October 7th the Israeli military refrained from any violations of humanitarian law is to attribute to it almost saintly qualities. Unfortunately, it’s quite possible the IDF may not have lived up to that high measure.

Is Israel Being Picked On?

If the ICC issues indictments against Israel, many of us may react with indignation and accuse the ICC of falling into the same anti-Israel bias of the United Nations and many human rights NGO’s. If war crimes are committed in nearly every war by every country, and routinely go without any international legal consequences at all let alone ICC indictments, why is the ICC now suddenly coming to life? Are Israel’s alleged violations really worse than those of other countries, or is the ICC just picking on Israel, following in the footsteps of the U.N Human Rights Council and many other international organizations?

Let’s begin by acknowledging that should the ICC in fact indict only Israeli leaders without also indicting the leaders of Hamas for the October 7th atrocities and the indiscriminate firing of thousands of rockets at Israel’s cities, it really would be a travesty. That would indicate an indefensible anti-Israel bias and would ruin any claim to impartiality of the ICC. I fervently hope this doesn’t occur.

But if the ICC indicts both leaders of Israel and Hamas for war crimes committed during the current conflict, the fact that war crimes are also being committed in other conflicts all around the world isn’t an excuse. Take the mundane example of traffic laws. Drivers speed and go through stop signs all the time. In most cases nothing happens, but every once in a while a cop is there to give a ticket. For a driver caught speeding to point out to an officer that while the officer is busy writing the ticket another driver sped by is not going to work.

The reality is that the war between Israel and Hamas is extremely high profile and has attracted intense scrutiny all around the globe. Rather than anti-Israel bias, it’s simply natural for the ICC to investigate. With the Israel- Hamas war at the center of global affairs, it’s inevitable that it receive attention from the ICC.

The Timing

The timing of these indictments seems to be the most sensitive issue. This war has been tragically raging for over half a year- why does the ICC seem to be on the verge of issuing indictments just now?

I’ve previously written that the ICC should have issued indictments against Hamas leaders right away way as far back as October 8th. Not doing so sent the unfortunate message that maybe the horrors Hamas perpetrated then might somehow be justifiable or there’s some factual question as to whether it really ocurred. One suspects that the ICC’s hesitation to indict Hamas then was a desire to not appear one-sided, and it wanted to wait until it had made a decision about Israel before proceeding.

If now the ICC has finally come to the conclusion that it has evidence of specific violations attributable to Israeli leaders that meet its criteria for prosecution, it makes sense that it would move ahead with both Israel and Hamas indictments. And the ICC will tell us that the timing is based only on the progress and results of its investigations with politics completely aside.

Of course, that is nonsense. The ICC operates in an environment that is intensely political, and political calculations necessarily influence the prosecutor.

In this case, according to news reports diplomats are making the case that indictments right now, while negotiations for a cease-fire are at a critical juncture, would have a harmful effect. If cease-fire negotiations succeed we will be on a path to the release of at least some hostages, increased humanitarian aid, and the prospect of a begin to return to normal life in Gaza. If negotiations fail Israel may invade Rafah. Numerous countries are applying intense pressure for this deal to happen, and there is fear that ICC indictments at this critical moment might make it harder to get the parties to go along.

Of course there’s no obvious reason why the ICC indictments and these negotiations should be connected. Any ICC indictment would have no immediate practical effects and the incentives for Israel and Hamas to agree to the cease-fire would remain unchanged. But indictments would surely distract the key decision-makers on both sides and at the very least lead to a fresh round of propaganda, accusations, and delays. That might already be too much for the delicate negotiations to bear.

Therefore, asking the ICC to delay for a short time, until hopefully a cease-fire has been agreed to, begun to be implemented, and the situation is more stable would seem reasonable. Yes, there is a likelihood that at least some of the diplomats making that request are doing so in the hopes of thwarting ICC indictments indefinitely. The ICC prosecutor should rightly refuse to allow politicians to bully him out of issuing indictments that he believes are legally sound. But the first principle the ICC should follow is to do no harm. If issuing indictments this week risks making an Israeli invasion of Rafah more likely he should use his common sense and discretion to keep the actions of the ICC aligned with global efforts to stop the war.

Photo generated by AI

Leave a Comment

Your email address will not be published. Required fields are marked *