ICC Arrest Warrants Open the Door for a Western Arms Embargo on Israel
The world court's decision could also give a tailwind to the criminal complaints and investigations against IDF soldiers and commanders that are being conducted in numerous countries ■ From civilian visits to combat areas to conduct akin to that of a militia, the IDF's disciplinary problems getting worse
'We show up in places that some of the Jewish community has abandoned'
Even in a particularly news-intensive week, the most dramatic headline of all arrived only toward its end, on Thursday afternoon. The International Criminal Court in The Hague issued arrest warrants against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, for perpetrating crimes against humanity.
A similar move that was considered against top Hamas figures Yahya Sinwar and Ismail Haniyeh was aborted because the two were assassinated in the months since the request was made to the court. However, the ICC did issue a warrant for Hamas commander Mohammed Deif after the court's prosecutor notified the judges that he wasn't able to ascertain that Deif had been killed. Israel confirmed his death in August.
Dr. Eran Shamir-Borer, the director of the Center for Security and Democracy at the Israel Democracy Institute, served for many years in the Israel Defense Forces' military advocate general's unit, ultimately becoming the head of the international law department, with the rank of colonel. Shamir-Borer tells Haaretz that the ICC's decision is "outrageous in many senses, but the state's conduct contributed to the decision."
When the prosecutor submitted a request in May for the warrants to be issued, the possibility existed that an independent, serious Israeli investigation of the charges would dampen the enthusiasm for the move in The Hague. But nothing happened since then, and the government vehemently opposed the establishment of a state commission of inquiry.
"If in that period we had created an effective investigative mechanism to address the allegations that were raised, the prosecutor might have withdrawn his request," he adds. "In practice, the state did nothing. It buried its head in the sand." Shamir-Borer notes that the court is restricted to dealing with events that occurred up until the submission of the arrest request, but the investigation is still pending, and it presumably takes into account events that have happened since then, and will consider what will happen in the future.
The impact of the continuation of the war, and especially the recent events in the northern Strip, cannot be ignored. "The judges explicitly note that it appears the crimes the warrants are based on are still being committed today, and it's possible they thought that with their decision, they are helping to stop another humanitarian disaster," he says.
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The court only released a short summary of the warrants, so it's not clear which incidents are at the heart of the investigation, but it refers in general to attacks on hospitals and the prevention of the entry of humanitarian aid, and also to two deliberate attacks on Palestinian civilians. These investigations could also be aimed at other suspects and indictees, both within the IDF and the political echelon.
As for Netanyahu, Shamir-Borer doesn't believe he will risk visiting any of the over 120 countries that are signatories to the Rome Statute, for fear he will be arrested. The United States is not a signatory to the treaty, and the Trump administration can be expected to take a hostile stance toward the ICC. However, Shamir-Borer doesn't recommend pinning all hopes only on American support.
The ICC's decision is liable to create an opening for a weapons embargo by additional Western countries, which until now have made do with more moderate measures against Israel. It could give a tail wind to many criminal complaints and investigations against IDF soldiers and commanders that are being conducted in numerous countries. It's also a reminder that another focus of the criminal investigation is the goings-on in the West Bank, with an emphasis on the settlements.
Militia-like behavior
The news from The Hague arrived on Thursday just minutes before another legal development. An indictment was filed in Tel Aviv District Court against Eli Feldstein, one of Netanyahu's spokespeople, on a serious charge: passing secret information with intent to harm state security.
A reservist noncom from Military Intelligence whom Feldstein allegedly received the material from was charged with passing secret information. Feldstein's arrest last month generated considerable confusion among Netanyahu's milieu, but in short order his bureau pulled itself together and launched a counterattack. The spokesman became a martyr, another victim of political investigations against the Boss.
The renewed ardor rekindled the efforts to pass the judicial overhaul, and its progenitor, Justice Minister Yariv Levin, declared its return to full activity. In the meantime, the Prime Minister's Office busied itself with additional, desperate attempts to delay Netanyahu's testimony in his corruption trial, which is slated to begin on December 2.
Gallant and Netanyahu in July.Credit: Ilan Assayag
The coalition also had important matters to attend to in a week when soldiers were killed in Gaza and in Lebanon every single day: legislation that will prevent the establishment of a state commission of inquiry, passage of a law that will provide the prime minister with an intelligence review department of his own (and will ensure access to all information), and torpedoing a bill submitted by lawmaker Gadi Eisenkot of the National Unity Party that sought to ensure a university scholarship for every soldier upon their discharge. A dumb move by protest activists, who fired a naval Mayday flare near Netanyahu's Caesarea home, enabled the prime minister to invent a whole story about a dangerous attempt to assassinate him.
It's worth noticing the line that connects all these dots. Netanyahu's supporters are completing the crystallization and consolidation of a narrative according to which he is completely blameless for the blunders of October 7, and on the other hand, is solely responsible for the war's operational achievements. A large segment of the Israeli public buys this narrative. This is the meeting point of the overt and clandestine actions against the attorney general, the director of the Shin Bet security service and the IDF chief of staff.
In the past few days there have again been rumors circulating that Netanyahu intends to fire the chief of staff, Herzl Halevi, perhaps after an agreement is reached with Lebanon. In the meantime, the director general of the Defense Ministry, Maj. Gen. (ret.) Eyal Zamir, announced that he is retracting his resignation and has decided to stay on.
Next week, the IDF is set to move ahead with publishing part of the investigations of the war. This week, belated understandings were reached between the army and the state comptroller about the issues on which the latter will focus. The delay in the probes, and the fact that so few of the ranking figures have resigned to date, is making it difficult to fully carry out the investigations and bring people to justice – in regard to other incidents as well. When they themselves are guilty, they won't take measures against their subordinates.
The prolonging of the war and the combat units' burnout are causing acute operational discipline problems in the ranks, in both Gaza and Lebanon. There are increasing manifestations of militia-like behavior, particularly in the units of the ground forces. This involves unnecessarily demolishing houses and ignoring the rule of engagement – but these are issues that the Israeli public has barely taken an interest in since the horrors of the October 7 massacre.
A Jewish settler writing "We will be back and return to our borders," in the Gaza settlement of Netzarim in 2005.Credit: Getty Images
At the beginning of the week, a brief storm arose when Daniella Weiss, a veteran settler activist, boasted in a media interview that she had visited the ruins of the Netzarim settlement in Gaza with the army. The IDF launched an inquiry to find out who authorized her entry, – a declared move ahead of renewing the settlement – and in the meantime says they haven't been able to discover the responsible party.
But something immeasurably graver occurred. A 71-year-old civilian, Ze'ev Erlich, from the settlement of Ofra, was killed in Lebanon on Wednesday. Erlich, who was highly knowledgeable about the history of the Land of Israel, had been a favorite of the commanders in the West Bank for decades.
One of them, Col. (res.) Yoav Yarom, is today the chief of staff of the Golani Brigade. The two toured an ancient fortress in southern Lebanon, next to which is a grave that is considered holy to both Jews and Christians. Two Hezbollah operatives who were hiding there opened fire. Yarom and another officer were wounded and Erlich was killed. It turned out that his hosts hadn't bothered to formally mobilize him, but the Manpower Directorate decided, through an incredibly expedited process, to recognize him as a fallen soldier.
The incident mirrors a whole slew of serious problems: systematic breaches of discipline (Erlich, it turns out, had previously visited Lebanon and Gaza in a similar fashion many times), lapses in orderly reporting, unnecessarily endangering soldiers and, as usual, ideological flirting with the settlers. An extremist organization whose aim is to establish settlements in Lebanon published a mourning announcement for Erlich, "for whom Lebanon burned in his soul and who had completed a map of Jewish sites that will need to be excavated once the area is in our hands." Their goal doesn't look realistic, but Weiss' and her associates' plans for Gaza are proceeding with no restraints.
Ze'ev Erlich's military funeral, on Thursday.Credit: Oren Ben Hakoon
This is the third time Yarom has been wounded. A brave soldier and a moderate in his political views, he himself is over 50 and has been serving in the reserves almost continuously since October 7. His explanations for the improvised and dangerous entry have yet to be heard; but another person paid an even higher price for the mistake: Sgt. Gur Kehari from Moshav Nir Banim, a combat soldier in the Golani Brigade, was also killed in the incident.
Kehati is the grandson of Brig. Gen. (res.) Assaf Agmon, a veteran of the air force and one of the leaders of the protest movement against the judicial overhaul. In a meeting I had with Agmon last week, he felt an inner foreboding. Along with his anxiety for the country, he spoke of his personal concern for his son and two of his grandsons, fighters in the regular army and in the reserves who are serving on the various fronts. During an impassioned argument in one of the protest forums, he wrote to his friends: "I've been walking around with a eulogy in my pocket since the war started." If there were soldiers killed in vain in this war, the case of Kehati is the most salient of them.