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On November 21, 2024, nearly six months after Prosecutor Karim Khan submitted a request for arrest warrants against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, the International Criminal Court (ICC) Pre-Trial Chamber approved the request and issued the warrants. At the same time, the ICC issued an arrest warrant for Hamas commander, Mohammed Deif, who was reportedly killed in July, although his death has not yet been officially confirmed. For Israel, this decision to issue the warrants establishes a serious precedent, staining Israel’s international reputation and carrying far-reaching implications beyond the personal consequences for Netanyahu and Gallant. Addressing these warrants demands urgent action, and Israel has several options at its disposal.

Serious Allegations

The decision to issue the arrest warrants was unanimously approved by the three judges of the ICC’s Pre-Trial Chamber. While the evidence and testimony supporting the decision remain confidential, the Chamber has shared the judges’ conclusions regarding the alleged crimes committed by Prime Minister Netanyahu and former Defense Minister Gallant from at least October 8, 2023, until at least May 20, 2024 (the date of the request for the warrants). The Chamber has also expressed its concern that these alleged crimes may still be ongoing.

The decision addresses both the humanitarian and operational aspects of the war in the Gaza Strip, including the methods of warfare employed by the IDF. It was determined that there are reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility for the following actions:

The war crime of using starvation as a method of warfare;

The crimes against humanity of murder, persecution, and other inhumane acts;

The war crime of intentionally directing an attack against the civilian population.

In their decision, the judges attribute actions to Netanyahu and Gallant that correlate with the accusations against Israel in the genocide proceedings held before the International Court of Justice (ICJ). These actions include deliberately denying Gaza residents access to food, water, medication, medical equipment, and medical treatment, with the intent to cause starvation, suffering, and death. Additionally, it is argued that Israel is severely violating the rights of the Gazan population to life and health based on political or national grounds; therefore, these actions could constitute the crime of persecution under international law. The decision further asserts that Netanyahu and Gallant, as decision-makers, bear responsibility for failing to prevent attacks that were intentionally directed against civilians in two incidents.

As part of the ongoing investigation into the “Situation in the State of Palestine,” additional arrest warrants may be requested, potentially involving senior personnel in the IDF and the defense establishment. Such warrants may have already been requested in confidential proceedings as the ICC has the authority to issue warrants confidentially. Moreover, the investigation includes the areas of Judea, Samaria (the West Bank), and East Jerusalem, which may result in further warrants concerning incidents in those areas.

The Significance of the Warrants and Other Risks

The severity of the ICC’s decision cannot be overstated. The warrants carry substantial weight, obliging each of the court’s 125 member countries—including almost all of Europe, most of Central and South America, as well as Canada, Australia, Japan, and others—to arrest Prime Minister Netanyahu and former Defense Minister Gallant if they enter their territory.

It is important to note that this decision comes from the ICC’s Pre-Trial Chamber as part of the investigative process, and no final decision has yet been made to file indictments or to prosecute the prime minister and former defense minister. If a decision is made to initiate proceedings, the trial can only take place in the presence of the accused. Therefore, unless Netanyahu and Gallant are arrested and handed over to the court, or surrender voluntarily, it will not be possible to try them.

Nonetheless, this decision sets a damaging precedent for the State of Israel. This is the first time since the ICC’s establishment in 2002 that an arrest warrant has been issued against the leaders of a democratic country. Previously, all 59 warrants issued by the court were for leading figures from countries such as Libya, Congo, Sudan, Mali, Georgia, and Russia, or active members of terrorist organizations.

The decision casts a shadow over Israel’s standing among law-abiding Western democracies and bolsters global efforts to delegitimize Israel.

Beyond the personal implications for Netanyahu and Gallant—such as restrictions on their freedom of movement and the risk of criminal proceedings—the warrants have broader consequences. They may lead to additional measures against Israel, further damaging its already fragile international standing.

Possible measures might include:

Additional measures related to the genocide proceedings in the ICJ, potentially influencing the court’s rulings on serious allegations against Israel;

Legal proceedings against Israeli officers, soldiers, and civil servants in various countries under the principle of universal jurisdiction;

Increased restrictions on arms transfers to Israel and other equipment, particularly in areas related to the accusations. Even governments that are reluctant to take such measures could give in to public pressure or local court injunctions in civil proceedings initiated by civil society;

Distancing of some countries from Israel to the point of severing diplomatic ties, as well as increasing boycotts of the State of Israel and Israelis by both official and unofficial bodies, including companies, businesses, academic and cultural institutions, and professional organizations.

How Did We Get Here?

Anti-Israel bias in the international system

The ICC has consistently demonstrated bias and hostility toward Israel. Its decision to issue arrest warrants reflects a growing global perception, particularly among academics, international legal experts, and human rights organizations, that Israel is a rogue state blatantly violating the fundamental principles of international law. This decision also reflects the romantic idea that wars can be avoided through legal prohibitions, with the expectation that the arrest warrants against Israel’s leaders will compel Israel to end the conflict—while ignoring its complexities.

The court’s bias has been evident on several past occasions. For example, ICC judges demanded that the former prosecutor—who was not sympathetic to Israel—open an investigation against IDF soldiers into the deaths of ten Turkish activists during the 2010 flotilla incident, even though the prosecutor made a firm (and justified) determination that the case did not meet the required threshold of severity. Ultimately, the prosecutor’s position was upheld by the appellate court. In addition, in 2021, the ICC made a controversial decision—without providing coherent reasoning—that Palestine qualifies as a state that can grant the court jurisdiction over alleged crimes in the West Bank, East Jerusalem, and the Gaza Strip. This decision ignored established legal principles regarding statehood and the limitations on authority outlined in the Oslo Accords, signaling the ICC’s selective application of legal standards in relation to Israel.

The ICC’s current decision to issue arrest warrants is flawed both procedurally and substantively and should not have been made. The ruling disregards the complexity of Israel’s military operation, the challenges faced by the IDF in fighting Hamas in densely populated areas, and the fact that Hamas embedded its military infrastructure within and under civilian buildings. It also fails to account for Hamas holding dozens of Israeli hostages and the ongoing threats it poses to Israel. Instead, the decision relies exclusively on evidence and testimony from aid organizations operating in Gaza, UN reports, and data provided by Hamas, sources that present a distorted view of the situation. At the same time, the ruling virtually ignores Israel’s substantial humanitarian efforts, including the coordination of aid transfers into Gaza, collaboration with aid agencies, improvement of access routes for aid into the Strip, and the logistic challenges of reaching Gaza’s population during the conflict. The decision also fails to acknowledge Hamas’s responsibility for the situation in the Gaza Strip.

Israel’s conduct

Despite the above, one cannot dismiss the impact of the damaging behavior of the Israeli government  on the decision to issue the warrants. Government statements and actions throughout the war contributed to the baseless allegations of the indictment, and the absence of any independent investigation by Israel undermined efforts to block the warrants. Moreover, the government’s conduct made it more difficult to get allies and others sympathetic to Israel to support it in the legal campaign against it.

Immediately following the October 7 massacre, senior government officials made harsh statements about the need to flatten Gaza, impose an absolute blockade, and expel its population. While such statements may have been understandable given the shock and horror in the early days of the war, similar unacceptable ideas continued to be expressed in the subsequent months of the conflict. Furthermore, there have been few, if any, clear official repudiations of these statements, neither externally nor internally.

Amid images and reports of widespread destruction and large numbers of fatalities in Gaza, as well as videos and testimonies of questionable actions by Israeli ground forces, there have not been enough clear official declarations affirming that this is not Israel’s way and that it respects the rules of war. Similarly, leaders and senior officials in the defense establishment and the IDF did not publicly demand that the ground forces act with restraint and respect the needs of the civilian population. This has given the impression that Israel does not see itself as committed to upholding the rules of war. Paradoxically, orders were issued to the ground forces that included restrictions in line with these rules, and many actions were guided by close legal counsel. Thus, Israel found itself in an absurd situation in which, despite imposing actual restrictions on itself, it has projected an image of lawlessness to the outside world.

A similar situation occurred regarding humanitarian aid. On the ground, Israel worked to extend aid and maintained close contact with international agencies to address the needs of Gaza’s civilian population, all while Israeli politicians issued statements suggesting that Israel was taking steps to restrict aid. Moreover, Israel tended to understate the extent of the humanitarian crisis in Gaza, and its actions in response to the crisis were inconsistent.

Over the last two months, Israeli actions have exacerbated the situation. After a period of improvement, in October 2024, there was a sharp decline in the amount of aid entering Gaza, accompanied by the unconvincing explanation that the High Holy Days caused delays. This was reinforced by statements and actions that suggested that Israel was implementing the “Generals’ Plan”—a blockade on northern Gaza combined with a transfer of residents to the south. At the same time, prominent voices, including government officials, proclaimed the intention to prevent displaced Palestinian residents from returning to their homes and called for the renewal of Jewish settlement in Gaza. The passage of the UNRWA legislation added to this perception. Although there is justification for curbing the activities of this harmful organization, the failure to propose alternative solutions for the population it serves sent a message that Israel has no interest in alleviating the suffering of the civilian population, leading to accusations that Israel is deliberately creating this crisis.

This perception of Israel is further fueled by statements and actions by the government that reflect a disregard for the rule of law. These include the lack of any action against Israelis who attacked Palestinians in the West Bank, opposition to the interrogation of soldiers suspected of abusing detainees, and the formulation of discriminatory policies. None of these incidents have been properly addressed by the Israeli authorities.

Moreover, what ultimately tipped the scales in favor of issuing the warrants was Israel’s failure to initiate internal investigations into cases suspected of violating international law. Instead, members of the government and the coalition actively attacked elements of Israel’s legal establishment and law enforcement who sought to advance such investigations. This behavior has reinforced the global impression of a decline in Israel’s standing as a democratic country committed to upholding the rule of law.

In May, when Prosecutor Karim Khan filed the request for arrest warrants, Israel should have initiated a professional and independent internal investigation into the accusations to counter the move according to the principle of complementarity. According to this principle, the ICC’s jurisdiction is complementary to, rather than a replacement for, a state’s own criminal mechanism. Therefore, when a state conducts a genuine and credible investigation of its actions, the court’s authority to investigate is effectively blocked. The prosecutor even hinted at this principle when filing the request for the arrest warrants, stating that his office would continue to examine the principle of complementarity in relation to the alleged crimes and additional directions for investigation.

An internal investigation would likely have influenced the ICC’s decision to issue the warrants. It should be noted that the court waited six months to issue the warrants after the initial request—unlike in the case of Putin, where the warrants were issued within three weeks. In addition, when the warrants against Netanyahu and Gallant were announced, a spokesperson for the ICC clarified that even at this stage, if Israel conducted a serious investigation into the allegations, the warrants could potentially be canceled. Furthermore, even if canceling the existing warrants may be difficult, initiating an internal investigation into the various allegations could mitigate the risk of further warrants targeting members of the IDF, the defense establishment, and government ministries.

Compounding this situation is the government’s ongoing refusal to present or even discuss its plan for “the day after” the war in Gaza. Israel should have leveraged its military achievements, along with its humanitarian efforts, which helped prevent starvation in Gaza, to propose a comprehensive solution for Gaza after the war. This plan could have emphasized Gaza’s rehabilitation, provided solutions for its population, and weakened Hamas. However, the government chose not to do so.

Instead, it appears that the government prioritized internal political considerations over the broader national interest, neglecting the importance of preserving Israel’s international standing to further its strategic goals.

What Now?

The arrest warrants themselves cannot be appealed and do not expire. However, Israel can take several steps to influence the court’s proceedings and mitigate the risks posed by the warrants in the legal, international, and domestic spheres.

The legal sphere

The jurisdiction argument: Israel can still contest the court’s jurisdiction and has submitted an appeal in this regard on November 27. Although the ICC has claimed territorial jurisdiction over the territory of “the State of Palestine” without requiring Israel’s consent, the court has indicated that Israel retains the right to challenge the jurisdiction at a later stage.

The complementarity argument—the importance of investigations: Israel can invoke the principle of complementarity to block court proceedings, prevent further warrants, and potentially cancel existing ones. This requires Israel to undertake immediate, independent, and professional internal investigations into all allegations, devoid of any political influence. While a criminal investigation is ideal, even a professional commission of inquiry, comprising professionals—investigators, jurists, and military experts—could suffice. Including renowned foreign experts could enhance its credibility. Linking such an investigation into the alleged crimes to unrelated demands for the establishment of an official commission of inquiry into the events of October 7 is unhelpful, as this could delay necessary action. For internal investigations and subsequent decisions by prosecutors and courts to be deemed as meeting the ICC’s standards for a “genuine” investigation, it is crucial to maintain the independent status of Israel’s legal and judicial systems.

The international political sphere

Sanctions against the court: Israel is relying on the incoming Trump administration to declare US sanctions against the ICC and even against countries that execute the arrest warrants. While such sanctions may deter some actions, they will not cancel the arrest warrants, and Israel will continue to operate under their shadow. Furthermore, these sanctions could face backlash from other Western countries, especially in Europe, which are committed to international law and the international legal system. It is worth noting that there is broad international support for the ICC’s investigation of Russia, including arrest warrants for Putin and Russian officials. Western countries may choose to avoid inviting Israeli leaders rather than risk non-compliance with the warrants.

A decision by the UN Security Council to suspend the investigation: Under the Rome Statute of the ICC, the UN Security Council has the authority to suspend an ICC investigation for one year, subject to renewal. While no such decision is currently feasible, the possibility could arise in the future, particularly in light of international developments. For example, as part of a deal regarding a ceasefire agreement in Ukraine, the investigation against Russia could be suspended. Similarly, a decision could be made concerning the warrants against Israeli officials as part of a broader political arrangement involving Israel, such as a regional agreement that includes reconciliation with Saudi Arabia and the Palestinians. However, this would require Israel to demonstrate diplomatic flexibility and fulfill preconditions on the global stage.

The domestic sphere—change of conduct

To alleviate the ongoing legal proceedings and political campaign against it, Israel must change its domestic policies and rhetoric. First, Israel should engage in serious discussions regarding “the day after” the war in the Gaza Strip and propose a framework for Gaza’s rehabilitation that addresses the needs of the Palestinian civilian population. Second, Israeli government officials must refrain from endorsing illegal actions or policies that undermine the rule of law. Specifically, statements should be made that Israel does not intend to transfer Gaza’s population permanently or establish Israeli settlements in its place. Finally, Israel must act decisively to curb the violence in the West Bank and protect the rights of the Palestinians living there. Such actions are crucial for internal reasons of upholding Israel’s democratic and Jewish values. They are also important for Israel’s international standing. While such actions would not halt the anti-Israel campaign nor eliminate the bias against Israel, they could help to garner support for Israel by those who believe in its right to defend itself but are concerned about the way Israel is implementing this right.

Conclusion

The decision to issue the arrest warrants is both grave and unjust, reflecting an anti-Israeli approach while completely disregarding the challenges Israel faces in fighting against Hamas. It embodies severe anti-Israeli bias that exists within the international legal and political systems, as well as in the global media and academia.

Therefore, it is hard to say that the decision to issue the arrest warrants was surprising, given the ICC’s one-sidedness and the fact that in all known cases where arrest warrants were requested, they were granted (there is no data on the ratio of warrants issued in response to confidential requests). However, it should be noted that in all other cases, the warrants were issued against senior officials of non-democratic states that are not committed to the rule of law.

The Israeli government has totally failed in its handling of the international legal campaign against Israel, prioritizing narrow political considerations over safeguarding the state’s national interests. The issuing of the arrest warrants against Israeli senior officials reflects the court’s lack of trust in Israel’s commitment to upholding the law and its willingness to conduct genuine and professional investigations on its own.

In a broader sense, the decision of the ICC serves as further evidence that Israel has not succeeded in establishing its narrative or conveying the message that it operates within the law in a complex reality where its adversary exploits the rules to its advantage. Israel has struggled to explain to the world the challenge of defeating a strong and dangerous enemy that has turned an entire civilian environment into its military infrastructure, making any action against its military capabilities result in civilian casualties and destruction of civilian infrastructure. Moreover, Israel has not effectively conveyed the magnitude of the threat posed by the multiple fronts it faces. It is judged by the standards of a powerful state fighting a weaker organization purportedly seeking national liberation. As a result, Israel’s actions are unfairly perceived as a prolonged campaign of revenge for events that ended more than a year ago, rather than as necessary measures to protect the lives of its citizens.

At this stage, the essential step is to initiate a serious and thorough investigation into the various allegations, involving credible, professional, and independent bodies. Such an investigation could potentially alleviate concerns about additional arrest warrants being issued against members of the IDF, the defense establishment, and Israel’s public sector. It might even lead to the cancellation of the existing warrants. Furthermore, more efforts should be made to demonstrate that Israel indeed respects the law and is working to alleviate the humanitarian crisis in Gaza. Such a clear and evident commitment, along with diplomatic efforts to present a political horizon, could aid the legal battle. However, these require the Israeli government to prioritize the preservation of the country’s international standing over domestic political considerations while rejecting those who advocate for isolationism.