Netanyahu is playing with fire with IDF preparedness and the ICC – analysis

Prime Minister Benjamin Netanyahu has taken two huge gambles regarding the IDF.

He has rolled the dice that the fallout post repealing the judiciary’s reasonableness standard regarding the IDF’s readiness for war and regarding war crimes allegations against the IDF before the International Criminal Court, would be relatively minor.

Now we will all find out if he was right.

The warnings coming from the security and legal establishments went like this.

Regarding IDF readiness, current top IDF officials, like IDF chief-of-staff Lt. Gen. Herzi Halevi and Air Force Chief Maj. Gen. Tomer Bar made it clear they would support the government against reservists threatening to quit.

They said they would not take political sides in the judicial debates, which effectively ended up lining them up behind Netanyahu.

However, both in March and this past week, the IDF’s top echelons privately warned Netanyahu that the military could come apart.

Worst-case scenarios coming to life

If until a few weeks ago, IDF officials brushed off the worst-case scenarios as all bluff and talk, in the last week or so, they said they recognized that a significant number of IDF reservists were actually quitting.

The numbers announced in letters were staggering.

Over 10,000 total and around 1,200 from the air force and around 1,200 from IDF intelligence, not to mention IDF medical personnel, special forces units, and others.

Of course, Netanyahu had some serious counterarguments.

He said they might be bluffing. He said that despite the threats to quit in March, all the reservists showed up to fight Islamic Jihad from Gaza in May and to fight terrorists in Jenin earlier in July.

The prime minister said at the end of the day, that if the country was in danger, everyone would show up – certainly anyone who was really important to the war effort.

In addition, he said that Israel could not set a precedent where the military dictates policy to the civilian leadership.

He implied that this could set the stage for a military coup or permanently end the IDF’s ability to act on a bipartisan basis.

The problem with all of these arguments can be summed up with three words: are you sure?

These three words matter, because the stakes if Netanyahu turns out to be wrong are much higher than being wrong on a standard Knesset law.

From time to time, there is a bureaucratic screw-up or miscalculation about how people will vote, and either the vote gets tabled for a week at the last minute to work things out, or the law is quietly amended shortly after the problematic clause is discovered.

Here, if things go downhill, there may be no redos.

If the air force in a couple of weeks cannot man sufficient flights into Syria, Iran’s proxies will start successfully smuggling more weapons onto the border with the Golan on a daily basis.

At some point, Hezbollah or Iran may decide to push the envelope to see whether the air force is still functioning, and even if it is, that could mean a war might happen which would not have happened if Israel’s deterrence had been maintained.

The stakes could not be higher.

And the military coup argument is pretty much a mirage because unlike military coups everywhere, here the “rebels” are saying they will hand in their badges to protect an independent judiciary, not that they will raise their weapons against the rule of law.

So everyone will learn in the coming weeks whether Netanyahu’s gamble was right or not – with the IDF currently saying they are still war-ready, but that damage has already been caused to the IDF’s cohesion for years to come (without anyone seeming to know what that will mean.)

Besides gambling on whether the IDF’s ability to fight wars will be impacted, Netanyahu also gambled on whether, when the IDF fights, Israel’s ability to prevent war crimes prosecutions, especially by the ICC, will be negatively impacted.

According to nearly every legal expert who is part of the government or military establishment, it is a real risk.

They refer to the independence of Israel’s Supreme Court and of the IDF prosecution and state prosecution as a legal “Iron Dome” against global war crimes cases against Israelis.

More specifically, the ICC opened a preliminary file against Israelis and Palestinians in 2012 and opened a full criminal probe in 2021.  

Deputy Attorney General for International Law Dr. Gil-Ad Noam, the top civilian expert in government on the issue, told the Knesset that restricting the “reasonableness standard” will harm Israel’s legal battle against the ICC and other international criminal investigations.

There is a flip side to these arguments, even if it is a relatively small percentage of Israeli legal scholars, which Netanyahu is banking on.

Those legal scholars who supported the full-fledged repeal of the reasonableness standard in the form that it passed (a watered-down version of limiting the reasonableness standard would have garnered more support with moderate conservative legal scholars) say that Israel’s legal establishment is blowing hot air.

First, they say that the ICC has no jurisdiction over Israel for many solid reasons which Israel’s mainstream legal establishment would agree with, including that “Palestine” is not a state and Jerusalem never ratified the ICC’s Rome Statute.

The problem is that, after six years of fighting, Israel already lost this battle in 2021. The fact that the ICC’s decision to recognize Palestine as a state may be legally incorrect will not help IDF officers avoid prosecution, since ultimately the ICC decides what is correct and what is not.

Next, legal supporters of repealing the reasonableness standard would say that even if the ICC had jurisdiction from a state, the Rome Statute does not delve into country’s legal systems to such a low level resolution about whether their courts apply a reasonableness standard versus some other tool to judge constitutionality or criminality.

Israel’s legal establishment would agree with this idea in theory, but here the practical question is very much in play.

The legal establishment is hoping to convince the ICC to find it cannot prosecute IDF soldiers on the basis that the IDF has its own independent system which carries out such probes and prosecutions – with the Supreme Court at the top of the pyramid.

Most democracies are rooting for Israel on this, but many of them were rooting for Israel on the statehood jurisdiction issue also, and the ICC ruled against Israel anyway.

Some say that the ICC will rule against Israel no matter what. They say that the fact that the ICC ruled against Israel on Palestinian statehood proves there is no point in dialogue or presenting Israel’s best legal face to the ICC.

Israel’s mainstream legal establishment believes that the Palestinian statehood issue was a hard political-legal issue to win on because around 140 countries have recognized a State of Palestine. In contrast, almost zero democracies want to see the ICC second-guessing another democracies’ independent legal system.

That is, if the legal system is independent.

There is no real way to know how the ICC will decide whether to second guess a democracy’s legal system.

Can anyone say that passing a law significantly restricting the Supreme Court’s jurisdiction, which could also “cool” the independence of other Israeli legal officials, and in an era when multiple Israeli ministers have made statements like “Huwara should be wiped out,” will for sure have no impact?  

Present Supreme Court power

Israel’s legal establishment wanted to present a list of decisions where the Supreme Court overrode the executive to show how independent it is and how hands-off the ICC should play the issue.

After the reasonableness standard repeal, it can still make the argument, but the question is much grayer and may be less of a winning legal silver bullet.

Would this be unfair when the ICC has found the legal system of Guiana, which has significant corruption and limits on judicial independence, to be adequate?

Sure it would be unfair. But the only choices available are not completely fair or completely unfair.

Some of those saying the legal establishment is blowing hot air correctly point out that even if the ICC gives a free pass to the IDF, Israel may have a problem with war crimes probes regarding the settlement enterprise.

But wouldn’t it be better to get the IDF that free pass and then have the “only” issue in dispute be the settlement enterprise?

At the end of the day, many of these issues come back to world view.

Those supporting gambling with the ICC in favor of repeal alternately assume the ICC will be out to get Israel no matter what and so it should be ignored, while also assuming (with an unclear basis) that no EU states will arrest IDF officials if ordered to by the ICC.

The legal establishment does not believe the ICC is giving Israel a fair shake, but neither does it assume that the cause is lost from the outset, and it is also quite worried that EU countries would honor an ICC order to arrest IDF officials.

Once again, we will soon see how Netanyahu’s gamble plays out.

JPost