Unable to Destroy Israel Militarily, Its Enemies Resort to Lawfare

JNS.org – Jerusalem has decided to appeal the International Criminal Court’s (ICC) decision to issue warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant. Israel submitted an announcement to the ICC on Wednesday regarding its intention, along with a demand to delay the warrants’ implementation.

In its decision, the ICC said there were reasonable grounds to believe Netanyahu and Gallant were criminally responsible for acts including murder, persecution and starvation as weapons of war as part of a “widespread and systematic attack against the civilian population of Gaza.”

Netanyahu has called the accusation a “modern Dreyfus trial.”

Once again, the Jews have been placed in the docket, this time as antisemites seek to punish Israel on trumped-up charges of “genocide” against the Palestinian people, he said.

Netanyahu met in Jerusalem on Wednesday with U.S. Sen. Lindsey Graham (R-S.C.), who updated him on the efforts he is advancing in Congress against the ICC and countries that cooperate with it.

Amb. Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Security and Foreign Affairs and the head of the Global Law Forum, told JNS that practically, “assuming states agree to honor the arrest warrants, despite their being inherently invalid and ultra vires [running against] the ICC statute, they could theoretically try to arrest Netanyahu and Gallant if they enter their territory.”

In a statement published on Wednesday, the Israeli Prime Minister’s Office said Jerusalem’s notice of appeal “shows in detail to what degree the decision to issue the arrest warrants was baseless and without any factual or legal foundation whatsoever.”

Israel denies the authority of the ICC and the legitimacy of the warrants issued against the prime minister and the former defense minister, the statement continued.

Should the court reject the appeal, it will underscore to Israel’s friends in the United States and elsewhere the ICC’s bias against the Jewish state, it added.

The court lacks jurisdiction in the case for several reasons.

First, Israel is not a party to the Rome Statute that established the court, and second because Israel has its own independent, robust judiciary. Third, Palestine is not a state and does not meet the criteria for statehood under international law.

By calling for the arrest of Israel’s leaders, the ICC is violating the Rome Statute, which clearly states that complementarity is the crucial factor in such a decision.

Since Israel has a robust judicial system, it is unnecessary and unlawful for the ICC to involve itself in Israel’s internal matters, and by doing so the court breaches its foundational principles.

Furthermore, as a recent Wall Street Journal editorial noted, “The charge of deliberate starvation is absurd. Israel has facilitated the transfer of more than 57,000 aid trucks and 1.1 million tons of aid [into Gaza], even though Hamas’s rampant theft means Israel is provisioning its battlefield enemy, something the law can’t require.”

The warrant also, absurdly, calls for the arrest of Hamas leader Ibrahim al-Masri, otherwise known as Mohammed Deif, whom Israel and Hamas both say was killed in an Israeli airstrike in July.

By naming him together with Israel’s leaders and thereby feigning even-handedness, the ICC has only demonstrated morally repugnant equivalence.

The Wall Street Journal also highlighted the case of Alice Wairimu Nderitu, the U.N. Special Adviser on the Prevention of Genocide. After she declared that the war against Hamas does not meet the qualifications for genocide, the United Nations announced that her contract will not be renewed, though it has denied the two things are linked.

According to Nderitu, the term “genocide” encapsulates the Holocaust, the Hutus’ mass murder of Tutsis in Rwanda, the Serbian attacks on Bosnian Muslims and the killings being carried out in Sudan.

“As a legal matter, establishing a pattern of violence as a genocide requires demonstrating intent. Israel’s campaign of self-defense doesn’t qualify,” the Journal‘s editorial noted.

The court’s baseless case against Israel’s leaders, coupled with Nderitu’s dismissal, demonstrates that the ICC is abusing the law for political means.

Several world leaders, including President Joe Biden, have harshly criticized the ICC decision.

Biden stated on Thursday evening that warrants were “outrageous.”

Rep. Mike Waltz, tapped by President-elect Donald Trump as National Security Advisor, tweeted, “The ICC has no credibility and these allegations have been refuted by the U.S. government. Israel has lawfully defended its people & borders from genocidal terrorists. You can expect a strong response to the antisemitic bias of the ICC & UN come January.”

Hungarian Prime Minister Viktor Orban has invited Netanyahu to visit his country, assuring him he faces no risk of arrest.

While ambiguous at first, France has declared it will not enforce the warrants as Israel is not a signatory to the ICC.

Some analysts have questioned whether France’s decision was linked to the ceasefire announced Wednesday between Hezbollah and Israel.

Famed lawyer Alan Dershowitz has announced he is assembling a “dream team” to defend Israel in The Hague.

This support is crucial because so much of the international community has fallen for the widespread anti-Israel propaganda.

Hala Rharrit, a former U.S. State Department diplomat who has made her anti-Israel opinions well known, said in an Al-Jazeera interview that most of the world is feeling that “finally, finally, there is a sense that the international community is taking action, far little too late.”

She said that in the State Department, “secretly, many American diplomats are celebrating this.”

Rharrit resigned in April in protest over Biden’s support for Israel.

Several world leaders have condoned the ICC decision.

Turkish President Recep Tayyip Erdogan called the ICC warrants “courageous.”

European Union foreign policy chief Josep Borrell said, “The states that signed the Rome convention are obliged to implement the decision of the court. It’s not optional.”

Some experts have questioned whether the warrant and its implications could prevent civilized nations from fighting terrorism.

“If this progresses to a large-scale issuance of arrest warrants for a wider range of military people and politicians, it  could certainly serve as a warning to states involved in fighting terror,” said Amb. Baker.

“But this issue is more of a blatant Israel-directed issue and would not necessarily be used against other states fighting terror,” he added.

According to Natasha Hausdorff, legal director of UK Lawyers for Israel Charitable Trust, “Every phrase of every sentence” in the court’s warrant “was in fact false.”

In a conversation with Matt Frei of Leading Britain’s Conversation (LBC), Hausdorff provided a stinging rebuke to the ICC. “One example is that in furtherance of this allegation of starvation, the prosecutor relied on a report that suggested that famine might come to parts of the Gaza Strip,” she said.

“That report was subsequently debunked by a Famine Review Committee report that indicated it had been based on insufficient or incomplete information and it drew implausible conclusions,” she said.

“The overall conclusion of that process and also from the press release the court put out on Thursday is that they have made that determination to arrest Netanyahu and Gallant on the basis of this slew of false information,” she said.

Should Israel be approaching this challenge differently?

According to Baker, Israel needs to show the countries that are party to the ICC statute “that the issuance of the warrants is ultra vires the terms of the statute since the ICC cannot exercise jurisdiction in the territory of a non-state entity that has no sovereign territory.”

He added that it is “widely acknowledged that no state of Palestine exists, and the fact that the Palestinian leadership has manipulated the United Nations and ICC to treat them as if they are a state doesn’t alter the basic legal and political fact that there is no state of Palestine. Hence the ICC cannot be given jurisdiction by a non-state, and cannot issue arrest warrants.”

“Also,” he said, “as Israel is not a party to the ICC statute, its senior officials enjoy state and diplomatic immunity and thus cannot be arrested.”

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