Israel and the International Criminal Court

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International Criminal Court Prosecutor Karim Khan’s strongly implied threat to bring war crimes charges against Israelis if the IDF invades Rafah, as well as for its general conduct of the ongoing war, could be the most dramatic war crimes moment for Israel to date.

There was no public hearing yet, the word genocide was not used, and Israeli officials did not publicly respond.

This left his statement swallowed up and mainly ignored by Israeli media coverage of the hostage rescue. But anyone who ignores Khan’s threat simply does not understand the power and influence of the ICC.

Large parts of Israel and the world followed the International Court of Justice with bated breath last month during the public hearings and the day of the interim decision on genocide allegations.

Yet, at the end of the day, the ICJ, at most, in a case like this one, could refer Israel to the UN Security Council, where the US would veto any attempted enforcement action.

A potentially more impactful organization
When the ICJ ruled against Israel in 2004, calling the West Bank security barrier illegal, Jerusalem ignored the ruling with some support from the US with limited public relations and economic consequences.

Of course, an ICJ ruling against Israel on genocide charges would be devastating in the public relations, diplomacy, and economic fields.

However, the chances of such a ruling are minuscule because genocide, even for a court that is not a fan of Israel, is the harshest and hardest to prove war crimes charge.

And once again, the ICJ has no enforcement mechanism. Unlike the ICJ, the ICC has an enforcement mechanism called INTERPOL.

INTERPOL has independent powers to arrest individuals and can campaign to press its members and the more than 125 member countries of the ICC, including essentially all of Europe, to arrest anyone for whom the ICC issues arrest warrants.

The ICC can keep its arrest warrants secret to try to surprise international travelers who thought they were still in the clear.

Unlike the ICJ, which sort of needs collective action, the ICC and INTERPOL can lean heavily on an individual member country to make an arrest without that country being able to use the US to veto something.

The US has some influence over the ICC because it is the world’s superpower but is not even a member of the court, so its influence is much smaller than with the ICJ.

Next, the ICC can indict individuals for lesser war crimes.

Since its founding around 25 years ago, the ICC has added new lower-grade war crimes such as “aggression,” and Khan, in statements in fall 2023, said that Israeli delay of humanitarian aid – mere delay, not blocking – could amount to a war crime.

Put simply, there is a much higher chance of the ICC issuing arrest warrants for Israelis accused of “smaller” war crimes than there is of the ICJ ruling against Israel on the question of genocide.
Israel also has other problems before the ICC.

All of the focus in the last few months has been on potential war crimes charges from the ICC for Israel’s conduct in the current war.

Many assumed that because Khan said almost nothing about the 2014 Gaza conflict for the first two-plus years of his term, he was going to take a pass on any charges related to that round.
But the ICC can also prosecute Israelis related to the settlement enterprise.

One of the reasons that Israel dropped out of ratifying the ICC at the last minute after being a lead sponsor (the original idea was to deter genocides like the Holocaust) was the late addition of essentially a crime tailored to hit Israel for the settlements.

If there could be a debate about whether Israeli settlements violated the Geneva Conventions from post-World War II, Arab countries added new language to widen the definition of settlements-related war crimes to try to apply them to Israelis.

If Khan kept mum on Israel for his first two years, it had been one of his loudest issues since October.

Khan will also be harder for Israel to label as simply anti-Israel.

In every statement he makes, he clarifies that he is eyeing prosecuting Hamas as well.