What will happen if the ICC charges Netanyahu with war crimes?
The Israeli government believes that the international criminal court (ICC) in The Hague is about to file war crimes charges against Benjamin Netanyahu and other senior Israeli officials. We can’t know for sure – the ICC has kept its plans close to the vest – but the Israeli prime minister has good reason to worry, and the defenses he has offered so far are unlikely to help him.
The ICC chief prosecutor Karim Khan’s most likely target is Netanyahu’s starvation strategy for Palestinian civilians in Gaza. Because the Israeli government has refused to let ICC staff enter Gaza, it will take time for Khan to complete the detailed investigation required to demonstrate other possible Israeli war crimes, such as indiscriminately bombing civilian areas and firing on military targets with foreseeably disproportionate civilian consequences. But the facts surrounding Israel’s obstruction of humanitarian aid are readily available.
During his two recent visits to the region, Khan stressed that, as international humanitarian law requires, Palestinian civilians in Gaza “must have access to basic food, water and desperately needed medical supplies, without further delay, and at pace and at scale”. He warned the Israeli government: “If you do not do so, do not complain when my Office is required to act.” The standard he cited is endorsed by virtually every government in the world including Israel, Britain, the United States, and, as a United Nations observer state, Palestine.
For much of the war Israel has allowed just enough food into Gaza to avoid widespread death, but not enough to prevent pervasive hunger and, in some parts of Gaza according to the USAid administrator, Samantha Power, “famine”. Oxfam calculated that hundreds of thousands of people in northern Gaza were receiving on average only 245 calories a day, about onetenth of normal requirements. At least 28 children younger than 12 were reported to have died of malnutrition as of 17 April.
Israeli authorities have been blaming anyone but themselves for this deprivation, but the evidence points primarily to Netanyahu’s government.
Israel understandably wants to stop the smuggling of arms to Hamas, but its understaffed, convoluted procedures for inspecting aid trucks can take three weeks, with trucks often rejected for carrying a single innocuous item that Israel deemed of military value, forcing them to start the process all over again.
Items rejected include anesthetics, cardiac catheters, chemical water quality testing kits, crutches, maternity kits, oxygen cylinders, surgical tools, ultrasound equipment, wheelchairs and Xray machines. When the UN secretary general, António Guterres, visited the Egyptian side of the Gaza border in March, he saw “long lines of blocked relief trucks waiting to be let into Gaza”. Israel has allowed much-publicized airdrops and sea delivery of food, but they provide only a tiny fraction of what land transport could deliver.
It is thus not surprising that Khan reportedly will initially charge Netanyahu, as well as the defense minister, Yoav Gallant, and Israel Defense Forces chief of staff, Lt Gen Herzi Halevi, for having “deliberately starved Palestinians in Gaza”. Just as Khan initially charged Vladmir Putin and his children’s rights commissioner with abducting Ukrainian children, and only later began to address Russia’s factually more complicated bombing campaign starting with attacks on electrical infrastructure, so is Khan likely to start with the straightforward charges in Gaza before moving on to more complex ones.
Khan will undoubtedly also charge senior Hamas officials in the military chain of command, as he should. The killing and abduction of Israeli civilians on 7 October are clear war crimes. But a basic premise of international humanitarian law is that war crimes by one side never justify war crimes by the other. The duty to comply is absolute, not reciprocal.
Netanyahu has already begun to offer his defense. In a post on Twitter/X, he said: “Israel will never accept any attempt by the ICC to undermine its inherent right of self-defense.” But that is nonsense. ICC charges will have nothing to do with Israel’s right to selfdefense. Rather, they will focus on the way the Netanyahu government has chosen to carry out that defense – by not only targeting Hamas but also committing war crimes against civilians.
Assuming that starvation is the ICC’s focus, Netanyahu may note that in recent weeks, the Israeli government has allowed more food into Gaza. Indeed, after the 1 April killing of seven World Central Kitchen staff members, when Joe Biden on 4 April implicitly threatened to condition future US military aid and arms sales on an easing of Israel’s obstruction of humanitarian aid, Netanyahu promised to open an additional border crossing and allow somewhat more aid into Gaza. Since then, humanitarian deliveries have increased, but are reportedly still insufficient. But this calibration according to US pressure only underscores the deliberateness of the starvation strategy. And easing that strategy now is no defense to having pursued it for many months.
The Israeli government may argue that Israel has a well-developed legal system and can prosecute its own war criminals. Under what is known as the principle of complementarity, the international criminal court is supposed to defer to conscientious national justice efforts. But Israel has no history of prosecuting senior officials for war crimes, and no case has been brought for Netanyahu’s starvation strategy in Gaza.
The Israeli government undoubtedly will argue that because it never joined the ICC, Israeli officials shouldn’t be prosecuted by it. But the Rome Statute creating the ICC gives it jurisdiction not only over the nationals of governments that have joined the court, but also over crimes committed on the territories of its members. That makes sense because addressing crimes on a country’s territory is a key attribute of sovereignty. Palestine has joined the court and granted it jurisdiction over crimes in its occupied territory – the West Bank, East Jerusalem and Gaza.
During the negotiations to establish the ICC, the US government opposed territorial jurisdiction, but the other governments present overruled it. US opposition to territorial jurisdiction was behind the sanctions outrageously imposed by Donald Trump on the prior ICC prosecutor, Fatou Bensouda, when she opened investigations in Afghanistan that could have implicated George W Bush-era torturers and in Palestine that could reach Israeli officials.
But Biden lifted Trump’s sanctions. When the ICC charged Putin based on territorial jurisdiction, Biden said the charges were justified. It would be profoundly unprincipled for Washington to accept territorial jurisdiction for Russian war crimes in Ukraine but not for Israeli war crimes in Gaza.
Moreover, any effort to interfere with the prosecution, such as by invoking the much-maligned American Servicemembers Protection Act that authorizes even military action to protect US allies from ICC prosecution – and hence has been dubbed the Hague Invasion Act – would probably yield enormous protests in the United States and endanger Biden’s re-election prospects.
Can war crime charges make any difference? The Israeli government is not about to surrender Netanyahu or his deputies for trial. But their travel would suddenly be limited. Although the US never joined the court, European governments have, meaning that suddenly Europe and much of the rest of the world would be out of bounds for those charged without risking arrest. It would also make it more difficult for Washington and London to pretend that their ongoing arming of the Israeli military is not contributing to war crimes.
In addition, an initial round of charges would be an implicit threat of more. As Netanyahu contemplates a potential invasion of Gaza’s southernmost city of Rafah despite 1.4 million Palestinians sheltering there, he must worry about whether more civilian deaths would spur Khan to intensify investigation of Israel’s apparently indiscriminate and disproportionate attacks on civilians. The ICC thus may live up to its potential not only to provide retrospective justice, but also to deter future war crimes.
Kenneth Roth, former executive director of Human Rights Watch, is a visiting professor at Princeton’s School of Public and International Affairs