On May 5, 2024, former deputy attorney-general for international affairs Roy Schondorf wrote a warning to the government and the public that a state inquiry must be opened to protect Israelis from potential International Criminal Court action.
This state inquiry would not have needed to get into politically risky subjects like the October 7 disaster, but rather could have been narrowly limited to international law and war issues.
Had the cabinet acted on Schondorf’s recommendation, it might have theoretically blocked ICC Prosecutor Karim Khan from requesting arrests against Prime Minister Benjamin Netanyahu and then-defense minister Gallant just two weeks later on May 20, 2024.
Under the court’s own Rome Statute, it cannot probe a country or defendants from a country if that country is still probing the same defendants. Currently, the IDF has opened close to 90 criminal probes and over 1,000 operational reviews relating to the Israel-Hamas War, but none of these look at the conduct of Netanyahu and the war cabinet.
The cabinet did not act on Schondorf’s suggestion and Khan moved forward with seeking the arrests.
But there were still more chances to slow down the ICC train.
In July 2024, The Jerusalem Post reported that IDF Military Advocate General Maj.-Gen. Yifat Tomer Yerushalmi had already made the same recommendation to the cabinet as Schondorf – and she likely had made it earlier than July.
In September 2024, it was leaked that Attorney-General Gali Baharav-Miara made the same recommendation in a formal letter to Netanyahu and the cabinet, something that she eventually confirmed in other public documents before the High Court of Justice.
Had the recommendation been approved at any of those points, even though Khan requested the arrests, it is unclear whether the ICC lower court could have approved his arrest requests, which it eventually did on November 21, 2024.
THE ICC Prosecutor and lower court are both bound to make decisions based on evidence and legal procedures. But the timing of Khan going after Israel right after the Rafah invasion started, and of the lower court ruling against Israel after it started a new operation in northern Gaza, could indicate that there were other “deterrence” considerations at play that only a state inquiry might have stopped.
The entire Israeli legal establishment, which includes many dozens of lawyers in many departments, supported the state inquiry idea.
The Post also understands that Israel made sure to clarify to Khan prior to the ICC prosecutor’s decision to seek arrest warrants on May 20, 2024, that if he was moving in such a direction at any point, Israel could probe itself with a state inquiry so that ICC action would not be necessary.
In other words, the understanding is that Israeli officials, including on the political level, believe that Khan knew about Israel’s state inquiry option, and intentionally misled Jerusalem into thinking he would visit Israel around May 20, 2024, to continue the parties’ months-long dialogue about the relevant issues. Some might even suggest that this had the effect of blindsiding Israel such that it was unable to activate a state inquiry before he made his public announcement.
Further, some would probably argue that the war crimes arguments that the ICC prosecutor is making, including arguments about starvation – which simply has not happened despite constant warnings that a vast Gaza starvation moment was imminent – are so extreme, and that the timing of the arrests process has moved so fast, that it is possible that nothing would have stopped Khan from barreling forward against the Jewish state.
The Post specifically asked the ICC prosecutor for responses regarding the claims about him allegedly planning to visit in Israel in May 2024, with the Prosecutor’s Office responding to the Post, “The Office can confirm that it had never received approval for a mission to collect evidence on the territory of Israel or in the State of Palestine.
“The Office had engaged with Israel and a range of partners in order to secure the approval of Israel to access Gaza, following frequent attempts over an extensive period of time to secure such access,” it said. “Attempts to secure the agreement of Israel to allow access should not however be conflated with planning of actual mission deployments.”
Israeli officials may give contrasting examples
TO SHOW bias against Israel, many Israeli officials would likely give contrasting examples like England, the US, Colombia and many others. In many of those cases, the ICC took many more years to move forward (Khan went after Israel mid-war and after less than a year of war, even if the probe against it dates back on other conflicts to 2014), and eventually dismissed cases even if the countries in question did not probe or prosecute all people involved in the controversy the way the court would have done.
Moreover, many Israeli officials likely view the advisers that Khan took on to help him better delve into the Israeli-Palestinian conflict, such as Prof. Kevin Jon Heller and Baroness Helena Kennedy, as a sign of built-in anti-Israel bias, which collectively inevitably also pressured him into acting against Israel, and on a more rapid basis.
While the Israeli legal establishment supports a state inquiry and believes Khan had ample opportunity to dialogue with them so that they could have potentially recommended such an inquiry prior to his seeking arrest warrants, now that things are where they are, there are additional considerations.
It is likely that many Israeli officials believe all of these developments must lead to the conclusion that the global international law and war apparatus must undergo a vast makeover, returning to some of the bedrock principles it started with following World War II.
They believe that this is a unique moment in history when, if common sense prevails, international law for managing war can regain its relevance.
Moving away from the politicization of international law, which the non-aligned movement started to push in the 1970s and after, the Post understands that they hope for a return of international law’s focus to more objective principles like military necessity, recognizing that civilian locations can become targetable if they are abused by fighters – and that wars are fought to be won.
And while the lawyers focus on their legal tools, some would probably acknowledge statements by the Israeli political level that the backing of the Trump administration during this period can’t hurt.