Will Benjamin Netanyahu be arrested?

By: Ricardo Israel - 25/11/2024

I don't think so, and I also think that a response from the US will come in January, which will include the threat of sanctions for judges and prosecutors. Netanyahu will not be arrested, just as Putin has not been. In fact, one of the major criticisms that the International Criminal Court (ICC) has received is that for many years it has basically only arrested and/or tried African leaders, which is true, with the additional political-ideological bias that many Venezuelans have waited long periods for sanctions to be applied against Maduro, with "justifications" ranging from the inaction of Moreno Ocampo, the first prosecutor, to the fact that the investigations have "been insufficient", despite the evidence provided.

But if that was the reason in other cases, why was Netanyahu ordered to be arrested, without any proper investigation when in May 2024 the lawyer Karim Ahmad Khan made the request to the judges who on November 21 published their decision? Moreover, not only the Prime Minister of Israel is listed, but also the former Minister of Defense Yoav Gallant, who was dismissed from his post on November 5, with the arrest warrant also being extended to one of Hamas' military chiefs Mohamed Deif, but with the particularity that Israel claims he is dead. Indicative of the problems with this "accusation."

For Netanyahu, this was a decision that was expected any day now, so the question is, why now?

Undoubtedly, the answer has to do with the fact that Biden is in his last days with the whole lame duck syndrome and that it will not be the same with Trump, who is dedicated to naming his cabinet before January 20, which for example has allowed reactions that would hardly be assumed in the same way if Trump were in the White House. For example, that countries like the United Kingdom and Canada, both through their Prime Ministers, have said that if Netanyahu comes to their countries, they would be arrested, which sounds too strong not only because they are Western allies, but also because in the British case, they have a great responsibility in the problem created while they were the power in charge of those territories, a situation that has also been repeated with the issues affecting the relationship between India and Pakistan and that of the Republic of Ireland with Ulster or Ireland, republic and province.

There is also no doubt that what has surrounded this decision has to do with the loss of respect and deterrence by the US not only with Iran, but also with Russia and China, and even with the failure to keep promises by the Houthis and Maduro, without there having been any reaction in this regard.

It also coincides with a Court and prosecutors who did nothing about the hundreds of thousands of deaths in Syria and the violation of human rights promoted by the dictator Bashar al-Assad or the case of Darfur with the crimes committed by Islamist militias against displaced Christians, in a context where the prosecutor Karim Khan faces accusations of corruption in his private legal advisory office as well as sexual abuse against a civil servant, both under investigation by both the Court and external investigators. To make matters worse, and as an example, the ICC has not expressed an opinion or acted against Erdogan's indiscriminate bombings against the Kurds, even in these days when the water supply to Syria has been interrupted, nor has it done anything against the Turkish occupation of 1/3 of Cyprus, pending since the 60s.

Without a doubt, the chosen moment seems like a provocation since it forces the US as a country as well as the incoming government to respond, since the Republicans speak of a real provocation and Trump himself must be seeing it as a test of fire for him and, without a doubt, Marco Rubio must be thinking something similar about the credibility of the foreign policy of the power, since without a doubt, what has happened with Netanyahu makes credible the claims of those who think that the next one will be some US President at the first opportunity that he intervenes militarily in some conflict, whether he has been an aggressor or an aggressor, among whom I count myself and that is what I wrote as soon as the prosecutor requested from the Court the arrest warrant that is now materializing (“International Criminal Court: Will the United States be next? What should it do?”, Infobae, May 23, 2024).

There is no doubt that taking action against Netanyahu will have consequences, not to mention the unusual scenes of Hamas celebrating the decision. What we would certainly not have seen is European countries showing their willingness to arrest Netanyahu, and the truth is that it is not pleasant for anyone, but it must be said, they simply would not have dared to take any other action from the White House.

While Trump may indeed be the US president closest to Israel since Harry Truman recognised the new state in 1948, given his first administration, he is not without risks, though Israel should surely receive the kind of plane and bomb it would need to attack Iran's nuclear programme. At least two, the first being the personalisation of international relations that is Trump's signature trait. In this regard, he may still be upset with Netanyahu, ever since he called Biden to congratulate him on his victory in the 2020 election, when Trump had not, although his track record shows that he is also capable of quickly moving past such moments. The second risk is potentially more worrying for Israel, as there is a danger that bilateral relations may want to return to the state of the Middle East after the Abraham Accords, where, let us remember, there was a whole proposal for the Palestinians, which, oh, what's new, they rejected, as they have done with every other peace proposal since 1948. The danger for Israel is that this Middle East no longer exists, as it was blown up on 7-X.

Regarding the steps taken by the ICC against Israel, my impression is that if it were only a matter of legal arguments, these actions should not be maintained in the future, since a review of the Rome Statute, which created the Court, leads to an immediate conclusion, which is none other than that the same judges should at some point revoke the arrest warrant, if Netanyahu and Gallant are tried in Israel for the same crimes, since Israel is a democracy that frequently investigates its leaders with absolutely independent courts, as demonstrated by the frequent demonstrations in support of the Supreme Court and against Netanyahu by the Israeli opposition.

Furthermore, we must never forget that the origin of this war is Hamas's invasion of Israeli territory and the refusal to return the hostages who are still alive, in addition to the fact that from a legal point of view and which appears in the Statute itself, there is the so-called preference of jurisdiction, that is, that the ICC should only operate when there is no justice, in the sense of a sentence or investigation by the courts of the country, in this case, Israel. Secondly, it is enough to read the Rome Statute in this regard, that arrest is only mandatory for the 124 signatory countries, and in this regard we must not only discount those like Israel itself, the USA, Russia, China, India and others that never signed it and have always rejected it, but also those who, having taken some steps, have never ratified it, which are 31, one of the reasons being that they have not complied with their own legality, especially in those cases where the law of those countries requires that in addition to the executive, the legislative power (Congress) must also ratify it, after the respective debate and vote.

Moreover, in Israel, in addition to the expected convening of a high-level commission to review the performance of its executive and senior military and security officials, modeled after the inquiry led by a Supreme Court judge after the 1973 Yom Kippur War, there is already an ongoing inquiry into October 7, 2023, that begins with the Hamas invasion and subsequent events, including the Israeli response. Moreover, when Gallant was ousted from the Cabinet by Netanyahu, the former defense minister's comment was to argue that the differences hinged on the fact that, in his view, the prime minister did not want to end the war in order to avoid such a judgment on his performance.

My interpretation tells me that as long as someone is a government official and travels on an official mission, he should have immunity, elements that were not present in the famous trip of General Pinochet to London in 1998, at the request of the former Spanish judge Garzón, although in another case, the United Kingdom did not arrest the Israeli general precisely because he complied with all the requirements.

This is what explains Putin's travels, knowing before the trip whether the inviters were available or not to meet with the ICC, as happened, for example, with South Africa and Brazil, both BRIC countries where he ultimately did not travel.

Furthermore, my last check of the Court's own website a few days ago showed that nowhere did it say that Israel should do something that is not going to happen, which is to hand over Netanyahu, so he will surely travel to Washington, as soon as Trump takes office, or perhaps before.

The most worrying thing of all from the point of view of due process, and of the Rome Statute itself, and an unequivocal example of a twisted application of the law, is that the prosecutor's request to the Court was made without any documentation or confirmation that a prior investigation had been carried out, and without any judicial ruling that would allow this stage to be skipped, that is, only presumptions and journalistic information, much of it biased. Hence, the comparison with Maduro and so many other situations, where the Venezuelan dictator is already over a decade old, and even today, the prosecutor and his people argue that they cannot issue an arrest warrant because the "investigation" has not been completed, despite the abundance of evidence.

Finally, this case is of much lesser importance than Putin’s, since, unlike Russia in Ukraine, Israel did not start this war, since its action was a response to a well-documented (they broadcast the crimes live) terrorist aggression. That is why Trump may have already announced what he is going to do, because through Mike Waltz as future head of National Security, it was announced that in January we will know of the “forceful response” of the US to the “anti-Semitic bias” of the ICC and the UN, and that, by doing so, they would not only be defending Israel but also future actions against the US itself, seeking to highlight something that is known, that in short, both the ICC and the UN specialize in acting almost exclusively against Israel, there being years where around half of all accusations, for example in the case of Human Rights, are concentrated on Israeli democracy, which is undoubtedly exaggerated.

There is no doubt that this situation affects Israel's international image, and that is the whole purpose of the Court, judges and prosecutors, not very different from what they have sought to achieve with the accusation of South Africa as well as Boric and Petro of an unproven "genocide", since no Court has issued a sentence or accusation in this regard. And there the difference is that the International Criminal Court does so against individuals and in the International Court of Justice (ICJ), it is the States that ask for sanctions against other States.

What will change if the US acts as expected from January onwards?

If the existing legislation is improved or applied, both the government and individuals could initiate criminal charges in their territory against support for terrorist groups, allowing sanctions and lawsuits by relatives with enormous consequences, since on 7-10-2023 alone, nationals of more than 30 countries died, requiring, for example, financial compensation in compliance with US law. If the law is adapted or improved, it could even be extended to prosecutors and judges of the ICC, due to biases in favor of terrorists, such as the persecution of Netanyahu and Gallant for having led the defense of Israel and the search for the kidnapped. In addition, there is very advanced legislation in the House of Representatives, which binds the government and which has been stopped in the Senate by Senator Schumer, who becomes a minority in 2025.

For a favorable ruling, the political aspect would be vital, that is, that the new authorities guide both the FBI and the Treasury to sanction specific people, identifying those who deserve such sanctions in the ICC and pointing them out by name and surname, something that the US has not done. And to bring about the change, in my opinion, executive orders would be enough and not necessarily laws, although if they existed, they would facilitate the protection of US authorities in the future.

In other words, there are at least 30 different nations (at least, since more than one could have dual or triple citizenship) that could call for Hamas accomplices to be tried, including ICC judges and prosecutors. Since we assume that Netanyahu is not going to be arrested, and Israel’s appeals will most likely be resolved at the ICC or the UN when the war is over, Biden will likely go home without achieving a ceasefire, in a context where the Court’s budget depends on the UN and the UN’s budget remains dependent on the West, so they may have bitten the hand that feeds them.

Furthermore, by indulging in an anti-Israel attitude, unlike the more experienced judges of the International Court of Justice who, apart from polite words, have not taken any decision that would allow action against Israel on the false accusation of “genocide”, the three-judge panel at the ICC rejected Israel’s argument that the Court has no jurisdiction in Gaza, since it is part of Palestine. Since Israel is not a party to the Rome Statute, the most striking thing remains that the ICC ultimately questioned the very instrument and legal framework of its existence, a treaty whose incorporation is voluntary, since it ends up judging a State that is not a party and therefore does not recognize that jurisdiction. For its part, Palestine as such not only does not have dominion in Gaza, and according to international law itself it has not yet completed all the steps that allow its existence, regardless of whether many countries recognize it, since the point is that the required formalities have not yet been completed.

According to the principles of international law, the ICC has legally nullified itself, since it is a court of last resort that intervenes when a country's courts fail to act against abuses, which is clearly not the tradition of Israeli courts. It also coincides with the debut of Marco Rubio in the big leagues, who could become the first Latin American with a real chance of running for the US presidency, and certainly that political future is going to be linked to these issues more than to Latin American ones. In addition, Rubio has strong pro-Israeli convictions, in terms of a close alliance with the US.

However, there is a task pending, since in the historical period in which we live, the facts matter less than the story, and Israel wins wars, but loses peace, and also, with a bad and undeserved image. Israel needs to build a similar image to the one it had between 1948 and 1967. The truth is that it is not enough to say that there is injustice, even Judeophobia, on the part of too many international actors.

It has not started any war and anti-Semitism, as the oldest bias in the world, is now just another fact. There is room for complaint and denunciation, but now Israel must concentrate on new challenges, including its foray into peace, for which the main objective must be to strengthen the incipient alliance with the Sunni Arab world, whose countries unfortunately do not yet include a reluctant Palestinian Authority that insists more on the past than on committing to a common future, that accepts two States, but not yet Israel as a country with a Jewish majority.

In general, these Arab countries, their state and society, have had a much more courageous attitude than most European nations, which have resurrected anti-Semitic ghosts. In contrast, in these Arab countries we have not witnessed what has taken place in universities in Europe and also, unfortunately, in the United States, where ideally the leadership of the Jewish community should have had a more resolute attitude, as well as many politicians should have taken advantage of their platform to confront those who, by dressing or having the same surname as other Jews, have had an overly accommodating attitude.

Because today, there are actually multiple fronts that are being sought to destroy the only country with a Jewish majority. And if not in the USA, then where can the Jewish community confront Judeophobia without any qualms?

@israelzipper /// PhD in Political Science (U of Essex), Law Degree (U of Barcelona), Lawyer (U of Chile), presidential candidate (Chile, 2013)

«The opinions published herein are the sole responsibility of its author».