From 2009 until 2021, Israel succeeded at preventing the International Criminal Court from opening a full war crimes probe against it, holding it at bay with a preliminary review of jurisdictional issues.
From June 2021 until October 2023, Israel also held ICC Prosecutor Karim Khan at bay, who barely talked about Israel and the Palestinians for his first two-and-a-half years, and absent the current war, many believe that Khan would have given Jerusalem a pass both on the 2014 Gaza conflict, and maybe even on the settlement enterprise.
Everything changed in less than a month.
By the end of October, and increasingly in November and December, Khan issued statement after statement warning Israel about war crimes.
He also tried to visit Gaza through the Rafah crossing, holding a press conference there when Israel prevented him.
Next, he visited Israel and the West Bank in an unofficial capacity to meet with Israeli victims of October 7 as well the Palestinian Authority in Ramallah – though still with no access to Gaza.
Khan also issued warnings to Israel which implied that he would go forward with arrest warrants against Israeli officials if Israel chose to move forward with a Rafah invasion.
The Jewish state even received messages in mid-April that the arrest warrants might be on the way.
Whether the Rafah operation sealed the deal, or whether it was Khan’s seeing multiple hard blows that the US served on Israel in recent weeks, explicitly stating that portions of the IDF (the Netzach Yehuda battalion and four other battalions) had violated international law in recent years, he finally decided that he had both enough evidence and political support to move forward.
The impact of the Khan’s decision on Israel
This is a disaster of mammoth proportions for Israel.
It will impact how the IDF fights at a macro level, it will impact how individual soldiers fight, it could eventually impact recruitment for battle units, it will negatively impact Israel diplomatically and economically, and it will be a stain on Israel’s name in the democratic and civilized world of public opinion.
This damage will not be fully undone even if the warrants are later dropped.
That said, for close observers, it actually could have been a lot worse.
The ICC is issuing arrest warrants against three senior Hamas officials. There are those who will continue to worship Hamas, but there are Israeli critics, especially ignorant ones, who defended Hamas who may now think twice.
The ICC did not issue arrest warrants against war ministers Benny Gantz or Gadi Eisenkot.
This is no small detail.
It is terrible news for any Israeli official to be tagged with the alleged war crimes label.
But it is even worse if that person is prime minister.
Maybe Benjamin Netanyahu will still be prime minister in six or 12 months, but if he is not, and Gantz is, the ICC will have somewhat helped Israel dodge a worse and more extended bullet.
The ICC did not issue arrest warrants for a single IDF official.
This means that it will give the IDF a chance to self-investigate alleged war crimes and may even accept IDF results or at least engage in negotiations with the IDF regarding those results.
If no IDF officials get issued arrest warrants or indicted, it could also alleviate the direct impact on the IDF’s fighting and recruiting ability.
This could also mean that the ICC may continue to respect Israel’s legal system.
It could maneuver and say that it only went after Netanyahu and Defense Minister Yoav Gallant because no one is even considering probing them.
Incidentally, if a state commission of inquiry checks both the government and the IDF’s compliance with international law and has been or is soon to be opened, Khan may need to freeze his arrest warrants.
This exact solution was proposed weeks ago by former deputy attorney-general for international affairs Roy Schondrof, but was ignored by the government at the time.
Maybe now, they will reconsider the idea.
This should give pause to those in Israel who are saying that the Jewish state should cease any legal or diplomatic attempts to reduce the harm from the ICC or the International Court of Justice.
Neither of these bodies are friends of Israel, and no one expected Israel to get a completely fair shake before them.
But the fact is that eight months and up to 35,000 killed Palestinians into the war (of which likely at least 60% were civilians), the ICJ has declined to order an end to the war, let alone tarred Israel with the genocide label.
Likewise, Khan seems to have waited until the middle of the Rafah operation, which pretty much the whole world opposed, and which will likely be the last major battle of the war, to come after any Israelis.
When he did, as stated above, he went only after two, and Khan, who is far more politically savvy than his predecessor Fatou Bensouda, knows that Netanyahu is profoundly unpopular right now across the world, and even behind in the polls within Israel should an election be held.
It seems he went after Gallant because he is the defense minister and not going to be probed, and possibly for certain public statements against Gaza, which Gallant made right after October 7 in the heat of the moment, but which could help the ICC in any case against him.
In addition, Gallant is part of Netanyahu’s party, even if the two are internally at loggerheads, so Khan may think he is helping Gantz and other center or left parties.
The truth is that within Israel, the ICC arrest warrants will probably give Netanyahu a temporary boost, but this may be beyond Khan’s analysis or beyond the level he cares to look into Israeli domestic issues.
Whether Israel adopts the Schondorf option – which helped it beat off the Goldstone Report war crimes allegations in 2008-9 – it is critical that the IDF rapidly start announcing the results of some of its war crimes probes.
This will not only give Khan pause about going after the IDF and force him to analyze specific cases as opposed to dealing with general stereotypes, but it will also show the civilized world that there is a real evidentiary-based other side to the story.
In the past, Khan recognized that the IDF has had to fight Hamas as it uses human shields and hospitals, schools, and mosques for its defense.
Top US government officials have also made this point.
Yet, this point was absent from Khan’s detailed announcement on Monday.
Khan, the US, and EU critics have also recognized that Israel has done a lot toward facilitating humanitarian aid. America has also noted that Hamas has interfered with humanitarian aid.
These are points Israel could make louder if it probes itself in detail and publishes the results—points Khan left out on Monday but would then need to confront.
At the end of the day, on humanitarian aid, Israel did make a strategic error in cutting off water and some other items for several days at the start of the war, but it fixed this issue in a short period of time, and if no deaths can be proved from that short period given supplies in Gaza on hand, the humanitarian war crimes accusations may fall apart.
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