ICC action brings an end to Israel’s exceptionalism

International Criminal Court prosecutor Karim Khan on Monday announced that he would file applications for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant, as well as against three Hamas leaders, for gross violations of international humanitarian law.

There was universal support for the long-awaited announcement, with the exception of the unhinged reaction of a handful of American lawmakers, who threatened to impose sanctions on the court and its staff. Sen. Chris Van Hollen denounced his colleagues for interfering in a “judicial matter by threatening judicial officers, their family members and their employees with retribution. This thuggery is something befitting the mafia, not US senators.” A handful of countries, such as Hungary, also objected to the announcement.

For decades, Israel’s claim of exceptionalism has been used to exempt it from rules of war and laws governing the use of arms exports. But this false claim of exceptionalism has had a destabilizing effect, leading Israeli leaders to act outside the law and commit increasingly cruel atrocities against the Palestinians without facing consequences. This lack of accountability has only emboldened bad behavior, as can be clearly seen in the ongoing war against Gaza.

When the International Court of Justice in January ruled that it was “plausible” that Israel had engaged in acts of genocide in Gaza, it implicitly rejected Israel’s claims of exceptionalism. The ICC prosecutor has now effectively put the final nail in that coffin, asserting that Israel should be judged by the same yardstick as all states.

This lack of accountability has only emboldened bad behavior, as can be clearly seen in the ongoing war against Gaza

Dr. Abdel Aziz Aluwaisheg

These developments have lent support to the rising voices in the US that are demanding the application of American law on Israel’s use of the country’s weapons. Despite the noises made by the Israel-can-do-wrong chorus, they have called for abandoning the “Israeli exceptionalism” argument in US military assistance, which amounts to about $3.3 billion a year.

For decades, US administrations have overlooked Israel’s violations of human rights and US laws, including the Leahy Law, which was passed 25 years ago and requires the administration to cut off transfers of US military aid to any foreign military unit “if the Secretary of State has credible information that such unit has committed a gross violation of human rights.” Despite numerous killings in the West Bank and Gaza by Israeli security forces, including of American citizens, the US government has never invoked these laws, disregarding demands by Sen. Patrick Leahy and others to apply them with respect to Israel.

On the contrary, according to press reports, the State Department set up a special process for Israel that effectively circumvented the Leahy Law; an exemption that was codified in a 2021 US-Israel agreement, during the Biden administration.

Exceptionalism has also been cited or implied by other arms exporters, such as Germany and the UK, to justify their continued exports to Israel, despite the overwhelming evidence that Tel Aviv is violating international humanitarian law in its war against Gaza.

The protestations by Israeli leaders, including accusing the ICC of antisemitism, are meant to thwart the expected additional steps required for the court to issue the arrest warrants, work to execute them and then start the prosecutions.

Removing Netanyahu, Gallant and the three Hamas leaders may, in fact, make it easier to resolve the conflict in Gaza

Dr. Abdel Aziz Aluwaisheg

The warrants will have both legal and political repercussions. While it is unlikely that Netanyahu or Gallant would voluntarily surrender to the court, the warrants, once issued, would make it difficult for them to travel to any of the 120-plus countries that are signatories to the Rome Statute, the ICC’s charter. They could also weaken them domestically, as their rivals could argue that the fact they are being pursued by international law enforcement would make them less effective advocates for Israel.

Similarly, for the three Hamas leaders, their lawyers may be able to persuade them to surrender to the ICC once the warrants are issued and face their day in court. That action would demonstrate courage and put the Israeli leaders in a bad light if they continued their defiance of the court orders. Defendants, whether Hamas or Israeli leaders, would have ample opportunity to defend themselves in The Hague and they would be absolved if the evidence was not strong enough.

Removing Netanyahu, Gallant and the three Hamas leaders may, in fact, make it easier to resolve the conflict in Gaza and pave the way for the arrival of an international force, as the Arab League recently suggested, to prepare Gaza for an eventual reunification with the West Bank.

In addition to the cases announced this week, there has been a wider ICC investigation into possible violations in the Occupied Territories. It was started several years ago and has yet to conclude. In 2019, the ICC prosecutor at the time announced an investigation into war crimes committed in Palestine by members of the Israeli military or Hamas and other Palestinian armed groups since June 2014. They included the establishment of illegal Israeli settlements in the West Bank and violations of the laws of war by members of the Israeli military during the 2014 Gaza War, including by targeting Red Cross installations. Members of armed Palestinian organizations, including Hamas, were accused of deliberately attacking Israeli civilians and using Palestinians as human shields.

The earlier investigation faced stiff resistance from Israel and some of its supporters, who tried to derail it. But the ICC prosecutor’s staff managed to carry on, sending formal notices in March 2021 and gathering information. If that wider investigation results in the issuing of new arrest warrants, it would further reinforce accountability in this conflict and bury forever any claims of Israeli exceptionalism.

Applying the rules of international law on all nations in our region can have a stabilizing effect by reining in impulses to act outside of the law, as Israel has clearly done in its 75-year war against the Palestinians.

• Dr. Abdel Aziz Aluwaisheg is the Gulf Cooperation Council assistant secretary-general for political affairs and negotiation. The views expressed here are personal and do not necessarily represent the GCC. X: @abuhamad1