One Step Forward for the ICC, One Giant Leap Backward for Peace


Jun 10, 2024

The International Criminal Court building in The Hague, Netherlands, January 16, 2019, photo by Piroschka van de Wouw/Reuters

The International Criminal Court building in The Hague, Netherlands, January 16, 2019

Photo by Piroschka van de Wouw/Reuters

This commentary originally appeared on Lawfare on June 9, 2024.

On May 20, International Criminal Court (ICC) Prosecutor Karim Khan announced that he was petitioning the court for arrest warrants for three top Hamas officials and, more controversially, Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. The news was welcomed by international legal experts, Human Rights Watch and other watchdog groups, some European governments, and a handful of progressive politicians here in the United States. On one level, this reaction is understandable, if not justified. For a growing segment of the public horrified by the scenes of Gaza in the news, Khan's announcement might seem like a step toward justice. But it is not. On the contrary, it will make the conflict even more difficult to solve and compound human suffering in the process.

First, there is the question of the validity of Khan's allegations. To date, the death toll from the conflict stands north of 35,000 killed—according to the Hamas-controlled Gaza Ministry of Health—of which 6,000 (according to Hamas) to more than 15,000 (according to Israel) are combatants. Even by Israeli estimates, tens of thousands of civilians have died in the conflict. The scale of this loss of life is a tragedy, without question. But the military realities of Gaza—one of the most densely populated places on Earth, with massive subterranean tunnel networks and an adversary that is intermingled with the civilian population—mean that any operation was, inevitably, going to be very bloody.

The brutal fact is that if Netanyahu and Gallant were the bloodthirsty genocidaires that their critics claim them to be, the death toll in Gaza would be orders of magnitude higher than what we see today. The Rwandan genocide, for example, was perpetrated over several weeks and resulted in 800,000 deaths, often at the hands of mobs equipped with machetes and gardening tools. If Israel was bent on the “extermination” of Gaza's population, as Khan alleges, Israel certainly has the soldiers, the firepower—the tanks, planes, and artillery—and the opportunity over eight months of war to inflict casualties on a similar scale. But it hasn't. Instead, Israel has been trying to move Gaza's population out of the areas of the most intense fighting, albeit in a rather ham-fisted manner, while simultaneously relaxing its rules of engagement. That's cold comfort to those Gazan civilians suffering in the midst of an ongoing war, but it is key context, nonetheless.

The military realities of Gaza mean that any operation was, inevitably, going to be very bloody.

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Much of the ICC's allegations focus on Israel's aid restrictions into Gaza during the war. It is true that Israel announced a “total blockade” of the strip shortly after the October 7 attack and that, since then, the amount of aid entering Gaza has not kept pace with humanitarian needs. But when Gallant announced the total blockade of Gaza on October 9, Israel was still battling to regain control of its border from Hamas infiltrators. Since then, Israel has slowly loosened its grip. In November, Gaza's Rafah crossing with Egypt opened for aid. In December, Israel's Keren Shalom crossing with Gaza reopened as well. The border crossing in northern Gaza reopened significantly later—for both operational and political reasons—but aid is now flowing. And while aid has recently plummeted again after Israel's seizure of the Rafah crossing, that's due in part to Egypt's refusal to reopen the border while Israeli troops are there, rather than Israeli restrictions per se.

And, yes, while Israel imposes an arduous inspection regimen on trucks going into Gaza, which constrains the flow of aid into the strip, Gaza is still an active war zone and Hamas's arsenal came from somewhere—much of it via tunnels, but some probably entered overland as well. And as October 7 itself proves, Hamas is quite adept at smuggling weapons into Gaza. So the convoys going into Gaza need to be checked and checked again. Finally, it's worth remembering that part of the holdup with aid also comes from Egypt, which has imposed its own limitations, as well as Hamas and other armed gangs, which have diverted and looted aid shipments. Like almost everything in the Israeli-Palestinian conflict, this is not a black-and-white issue.

Still, let's say, for the moment, that there is a reasonable suspicion that Netanyahu and Gallant are guilty of war crimes. The ICC indictment would still probably not achieve justice. The ICC does not have its own police force, and it is highly unlikely that any other country will try to capture either individual by force. Israel is not a party to the Rome Statute and does not recognize the ICC's jurisdiction. Nor, for that matter, does the United States. Israel's extradition policies are quite restrictive and require their citizens to serve their sentences in Israel. All of which makes the likelihood of either Netanyahu or Gallant ever seeing the inside of a courtroom, much less a jail cell, quite unlikely.

True, the ICC warrants, should they be granted, would make it more difficult for either Netanyahu or Gallant to travel abroad, but that punitive measure needs to be weighed against the second-order effects of the indictments. Khan's announcement succeeded in doing what so far no one else has been able to do—unite a deeply fractured Israeli society behind Netanyahu. Although poll after poll suggests that most Israelis want Netanyahu gone, the Israeli public still managed to rally around him when it came to the ICC. Indeed, 106 of 120 members of the Knesset—from across the political spectrum—signed a letter condemning the ICC's move. Of the remaining three parties that did not sign on, the head of the Labor Party condemned the ICC move in a separate statement, leaving the Arab parties, Hadash-Ta'al and Ra'am, as the only outliers.

Beyond strengthening Netanyahu's grip on power in the short term, the ICC's arrest warrant also risks changing his incentives for the worse over the long term. Netanyahu has been facing corruption charges in Israel since long before the October 7 attack. Now, with the prospect of fresh international charges, his best prospect for staying out of jail—at home and, now, abroad—will be staying in power, even if that means prolonging the war. If Netanyahu is indeed the core obstacle to peace—as many European, American, and Israeli politicians claim—then the key objective should be getting him to step down. And if that is the case, then the ICC's move was profoundly counterproductive.

There are still other deleterious effects, beyond shaping Netanyahu's personal political fortunes. By lumping a democratically elected Israeli government together with an internationally recognized terrorist organization like Hamas, the ICC's move will likely reinforce the preexisting perception among Israelis that the world is out to get them and their sense that it is useless to try to placate the international community. These critics of the ICC note that the Saudi-led intervention in the Yemeni civil war also killed thousands of civilians in an intense bombing campaign, but it did not trigger ICC indictments. Nor, for that matter, has Bashar al-Assad's campaign against his own population, despite the fact that the Syrian civil war has killed—by the United Nations' own numbers—hundreds of thousands of people, including through the use of chemical weapons. And the list goes on from there. This seeming hypocrisy, in turn, will further cement Israel's turn rightward and make any future Israeli-Palestinian peace deal even harder to achieve. The push to indict Gallant is particularly harmful in this respect. While he is one architect of Israeli military operations in Gaza, he is also currently one of the loudest voices in Israeli politics pushing against a protracted Israeli occupation of the strip after the war, and supposedly one of Washington's key interlocutors in negotiating an end to the conflict.

The fallout does not stop at Israel's borders. Europe has sought to position itself as an honest broker for a future Israeli-Palestinian peace deal, particularly as Washington is seen as being too close to the Israeli government. But much of Europe has signed the Rome Statute and so will need to abide by the ICC's wishes. As such, it will be hard for Brussels—or any European country—to play its aspirational role of peacemaker if Israeli leaders cannot travel there without fear of arrest and prosecution. At the same time, fewer European politicians will want to travel to Israel to have their photos taken shaking hands with men who are indicted war criminals, if only because the optics would complicate their own political fortunes. And so, the pool of potential peacemakers would dwindle.

The effect of the ICC's actions on the United States is, if anything, worse. American conservatives have seen the court as illegitimate, a constraint on American power, and a potential weapon that can be used against U.S. policymakers and service members since its development. Predictably, Republicans blasted these latest ICC moves and threatened sanctions. But the move has affected Democrats as well. The Biden administration had been more open to supporting the ICC as it targeted Russian actions during the Ukraine war. Now, the Biden administration and many senior congressional Democrats are blasting the ICC's actions, ensuring that the United States will remain opposed to the ICC for some time to come.

The ICC's move is unlikely to save lives, lead to any real justice, or build a more durable political modus vivendi after the war concludes.

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On an emotional level, it is understandable why so many people cheer on the ICC's move. Hamas's attack on October 7 and the war that followed have caused untold destruction and anguish. The ICC's push toward indictments seems like a first step in the direction of justice. But, for the moment, one central question needs to be placed above all others: What actions will ease the misery in Gaza and help bring this war to a close? In this respect, the ICC's move is unlikely to save lives, lead to any real justice, or build a more durable political modus vivendi after the war concludes.

Perhaps that is why everyone from U.S. President Joe Biden to British Prime Minister Rishi Sunak to a bipartisan group of U.S. congressional leaders—many of them outspoken critics of Netanyahu and his conduct during the war—have decried the ICC's push to prosecute. The move might be one small step forward for some sort of symbolic justice, but it's going to be a giant leap backward from reaching a far more important goal—peace.

Raphael S. Cohen is director of the Strategy and Doctrine Program of RAND Project AIR FORCE and the lead author of “From Cast Lead to Protective Edge: Lessons From Israel's Wars in Gaza.”