From 2009 until 2021, Israel successfully prevented the International Criminal Court (ICC) from opening a full war crimes probe against it, holding it at bay with a preliminary review of jurisdictional issues.
From June 2021 until October 2023, Israel held ICC Prosecutor Karim Khan at bay, who barely talked about Israel and the Palestinians for the first two-and-a-half years of his term, and, absent the current war, many believe Khan would have given Jerusalem a pass on the 2014 Gaza conflict, perhaps even on the settlement enterprise.
In less than a month, everything changed.
From the end of October, and increasingly so through November and December, Khan issued statements warning Israel about war crimes. He tried to visit Gaza through the Rafah crossing and ended up holding a press conference on the Egyptian side of the Rafah crossing.
He followed this with a visit to Israel and the West Bank in an unofficial capacity to meet Israeli victims of October 7 and the Palestinian Authority in Ramallah – still without direct access to Gaza.
Khan issued warnings to Israel, warnings that implied that he would advance with arrest warrants against Israeli officials should Jerusalem push forward with Rafah. Last month, Israel received messages in April that the arrest warrants might be on their way.
The impact of the Khan's decision on Israel
Something happened to tip Khan over the edge. Either it was Rafah or the multiple hard blows the US served Israel in recent weeks, including explicit statements that portions of the IDF violated international law in recent years. Whatever it was, it has left Israel in a disaster of mammoth proportions.
This will impact how the IDF fights at a macro level, how individual soldiers fight, and could eventually impact recruitment for combat units; it will negatively impact Israel diplomatically, and economically, and will be a stain on Israel’s name in the democratic and civilized world of public opinion.
Even if the warrants later get dropped, this damage will not be fully undone.
That said, for close observers, the truth is it actually could have been a lot worse, and the truth is all in the details.
The requested arrest warrants are out for three senior Hamas officials – perhaps critics of Israel who have defended Hamas as resistance fighters will think again.
Additionally, the ICC did not issue arrest warrants against war ministers Benny Gantz or Gadi Eisenkot – this is no accident.
It would be terrible for any Israeli official to be tagged with the label of alleged war crimes; it is even worse if that person is the prime minister.
Benjamin Netanyahu will perhaps remain premier for the next six or 12 months, but if he is not, and Gantz is, the ICC will have somewhat helped Israel dodge a worse and more extended bullet.
The court also did not issue arrest warrants for a single IDF official – this means that it will allow the IDF to self-investigate alleged war crimes, and might even accept the military’s results, or at least engage in negotiations with it. If no IDF officials are impacted, this could alleviate the direct impact it would have had on the army’s fighting and recruiting ability.
It could also indicate that the ICC respects Israel’s legal system, despite warnings to the latter sweeping last year’s judicial reform legislation.
The court could maneuver to say that it only went after Netanyahu and Defense Minister Yoav Gallant – because there is no internal probe for them. Incidentally, if a state commission of inquiry checking both the government and the IDF’s compliance with international law had been or is soon opened, Khan may need to freeze his arrest warrants.
This exact solution was proposed weeks ago by former deputy attorney-general for international affairs Roy Schondrof, but was ignored by the government. Perhaps now they might reconsider.
This should give pause to those in Israel arguing it should cease any legal or diplomatic attempts to reduce the harm from the ICC or the International Court of Justice (ICJ). Neither body is a friend of Israel’s, and there is no expectation it will get a completely fair shake before them. But, the fact is that eight months into this war and with a Palestinian death toll of 35,000, the ICJ has declined to order an end to the operation, let alone tar Israel with the label of genocide.
Likewise, Khan waited until the middle of the Rafah operation – opposed by nearly everybody – and is what will likely be the last major battle of the war, to come after any Israelis.
And, when he did, he went only after two, and Khan, who is far more politically savvy than his predecessor Fatou Bensouda, knows that Netanyahu is profoundly unpopular right now across the world, further even in Israeli polls.
Going after Gallant makes sense as he is the defense minister, and is not going to be probed. Additionally, in the heat of the moment after October 7, Gallant made public statements against Gaza that could help a case against him.
Gallant is also in Netanyahu’s party – even if, internally, the two are at loggerheads – so Khan may think he is helping Gantz and other center or left parties.
Within Israel, the arrest warrants will probably give Netanyahu a temporary boost, but this may be beyond Khan’s analysis and the level at which he cares about domestic Israeli issues.
Whether Israel adopts the Schondorf option – which helped it beat off the Goldstone Report war crimes allegations in 2008-9 – it is critical that the IDF rapidly start announcing the results of its probes. This will not only give Khan pause about going after the IDF and force him to analyze specific cases as opposed to dealing with general stereotypes, but it will also show the civilized world that there is real evidence on the other side of the story.
In the past, Khan had recognized that the IDF had no choice but to fight Hamas in its natural habitat, as it uses human shields and hospitals, schools, and mosques for its defense. This is a point that top US government officials have also made.
This point was markedly absent, however, from Khan’s detailed announcement on Monday.
Khan, and critics from the US and EU have also recognized that Israel has done a lot toward facilitating humanitarian aid, with Washington having noted that Hamas interferes with aid. These are points that Israel could be making louder if it probes itself in detail and publicizes the results.
At the end of the day, when it comes to aid, Israel made a strategic error by cutting off water and other items for several days at the start of the war, but it fixed this issue in a short period, and if no deaths can be proven from that short period, the humanitarian war crimes accusations may crumble.
One last wild card will be the influence of the US. Washington lashed out at the ICC on Monday, calling the arrest warrants outrageous and condemning Khan’s seeming moral equivalence between Israel and Hamas.
The US also seemed ready to embarrass Khan, flagging that he and his staff had possibly played games with Israel about making an in-person visit next week, while meanwhile actually preparing a frontal onslaught.
So what influence will the US have? On the one hand, it is not even a member of the ICC and does not fund it. Plus, it seems unlikely that the Biden administration will sanction the ICC as the Trump administration did.
On the other hand, the US’s moral voice rallying (if it does) other Western countries who do fund the ICC (like France and Germany) could have an impact at some point.
Either way, as of Monday, the world is a different place for Israel, and if Israeli lawyers were waiting to get active to present Israel’s case of what it is doing to probe the war, their time has run out.