Netanyahu could be saved from the ICC by the very judicial system he tried to destroy

In January 2023, Prime Minister Benjamin Netanyahu’s far-right government, just one week into its tenure, put forth a series of “judicial reforms.” The controversial “reforms” became known as Netanyahu’s “Judicial Coup” and sparked months of massive protests all over Israel, which were only stopped by the shock of Hamas’s Oct. 7 attack.

Had the Judicial Coup been successful, the vibrant and independent Israeli judicial system would have gone by the wayside. The Israeli Supreme Court would have lost its teeth, the rule of law would have been compromised and there would have been no check on governmental action.

In an irony for the ages, the very failure of Netanyahu to gut Israel’s judiciary could be what keeps him out of the dock at The Hague.

This week, the prosecutor at the International Criminal Court (ICC) backed by a “panel of experts in international law” sought arrest warrants against Yahya Sinwar, Hamas’s leader in Gaza; Mohammed Deif, the Hamas military chief in Gaza; and Ismail Haniyeh, Hamas’s Qatar-based leader. Concurrently, and in the same document, arrest warrants were sought against Netanyahu and Israeli Defense Minister Yoav Gallant. To be clear, none of the arrest warrants have been issued — all must first be approved by a three-judge panel (out of the 18 judges on the ICC).

The Biden administration and other Western countries have denounced the request for arrest warrants against the Israeli leaders and stated that there is no “equivalence” between Hamas and Israel — especially since the United States, the European Union and most Western countries have designated Hamas a terrorist organization.

The ICC mandate is to prosecute individuals, not states, and is separate from the International Court of Justice — currently hearing a case of genocide against Israel brought by South Africa. The ICC has only 123 parties to its charter — and key countries have refused to ratify, including the U.S., Russia, China, India, Israel and most Arab countries.

Since 2002, 54 people have been indicted by ICC, the majority of whom are notorious warlords from Africa, including Congo’s Joseph Kony and Sudan’s Omar al Bashir, but also figures from Russian-instigated conflicts, such South Ossetia and Ukraine. In March 2023, the ICC issued an arrest warrant for Vladamir Putin and in March 2024 for Russian military commanders Victor Sokolov and Sergei Koblyash.

What makes this case unprecedented is that, for the first time, ICC warrants have been sought against government officials from a democratic country with an independent judiciary. Historically, under Article 17 of its charter, the ICC does not prosecute cases that can be investigated (and tried) in the domestic jurisdiction of the alleged perpetrator — unless there is no action.

Indeed, one of the central arguments against Netanyahu’s proposed January 2023 Judicial Coup in Israel was that it would leave the nation without an independent judiciary and could lead to international indictments against Israeli officials. Netanyahu nonetheless pursued the Judicial Coup as a means of avoiding his three corruption trials — until Oct. 7.

In its arrest warrant request, the prosecutor and panel of experts referenced multiple statements by Netanyahu, Gallant and extremist members of the cabinet (such as Itamar Ben Gvir and Bezalel Smotrich) to the effect that food supplies and humanitarian aid should be intentionally withheld from Gaza such that “intentionally using starvation of civilians as a method of warfare” could be deemed an Israeli war objective.

In April, it took the death of seven aid workers from World Central Kitchen to get Netanyahu to throw the humanitarian aid gates open. Now that the U.S. has built a “dock” off the coast of Gaza, more aid is arriving by ship, though questions remain about distribution.

Israelis across the political spectrum have denounced the warrant requests  because Israel views itself as a democracy and the battle against Hamas as a just war. While Israel has an inherent right to self-defense under Article 2(4) of the U.N. Charter, the fight against Hamas could be a just war and could still be conducted using non-legal means.

Politically, however, if the arrest warrants are issued, it will certainly not spur an end to the conflict, create conditions for a cease-fire or a deal on the Israeli hostages. In fact, the opposite.

Strong pressure will be put on the ICC by the U.S., Germany and others not to move forward with the indictments against the Israeli leaders. One mechanism by which the ICC judicial panel could justify denying the warrant requests is that Israeli Supreme Court is currently hearing cases on the denial of humanitarian aid — which, had Netanyahu’s Judicial Coup been passed, the Israeli court would have had no power over.

If the ICC does not grant the arrest warrant against Israeli leaders, Netanyahu will owe his freedom to the independence of the Israeli judiciary that he tried so hard to eviscerate.

Jonathan D. Strum is an international lawyer and businessman based in Washington D.C. and the Middle East. From 1991 to 2005, he was an adjunct professor of International Law at Georgetown University Law Center.