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What You Need to Know About the ICC Arrest Warrants for Israeli Leaders

The International Criminal Court, The Hague, Netherlands. Photo: Wikimedia Commons.

You may have heard that the ICC (International Criminal Court) is on a path toward issuing arrest warrants against Israeli leaders. But you may not know how this came about, where we are in the process, and what it could mean for Israel, America, and the entire free world.

To help you cut through the disorganized reports, sensationalism, and widespread misinformation, here is a thorough and clear update — from a lawyer.

The ICC  is distinct from the International Court of Justice (ICJ). At the ICJ, South Africa is attempting to make a case against Israel for genocide, which will take years to complete. However in the meantime, South Africa has repeatedly presented emergency motions for an immediate and unconditional ceasefire, including an attempt just last week which does not technically accomplish that goal, but comes perilously close.

Separately, but in parallel, the ICC prosecutor, Karim A. Khan, has brought a request to the ICC to issue international arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, as well as several Hamas leaders.

If granted, these arrest warrants will make it impossible for Netanyahu to leave Israel and enter any of the 124 countries that are members of the ICC (approximately two thirds of the world), as well any additional countries that have mutual law enforcement agreements, such as all Interpol countries.

The United States is not an ICC member, and would be unlikely to enforce the warrant, however most European countries are either ICC or Interpol members (or both), as well as much of South America and some of the Asia-Pacific.

So how did this all come about?

The ICJ has jurisdiction over Israel because Israel signed the Genocide Convention of 1948. In fact, Israel helped draft the document, which is meaningfully connected to the very soul of Israel, as the whole concept is an outgrowth of the Holocaust. It is therefore a cruel irony that Hamas and its allies would weaponize the ICJ against Israel. Paradoxically the ICJ does not have jurisdiction over Hamas, so if they do issue a “ceasefire” order, it will be one in which Israel ceases, but Hamas fires.

By contrast, the ICC does not have jurisdiction over Israel, except insofar as the Court unilaterally decided that it does.

Specifically, the ICC is charged with enforcing an international treaty called the Rome Statute, which was ratified by 124 countries but notably, not by Israel or the United States. How then did the ICC come to the conclusion that it can enforce a treaty over a country that never actually agreed to it?

The ICC’s rules hold that the Court may exercise jurisdiction over any events that occur inside the borders of a member state. The ICC recognizes a Palestinian state, and includes it as a member of the ICC. Although the “state” of Palestine has no recognized borders or territory, the ICC nonetheless ruled in 2015 that events occurring inside the West Bank and the Gaza Strip count as being “inside” the “borders” of the “State of Palestine,” and are therefore subject to the Court’s jurisdiction.

In recent days, the ICC prosecutor accused Israel of a number of violations of the Rome Statute, which is paradoxical on several levels at once:  for one, Israel never agreed to be bound by the Rome Statute, and secondly, the specific accusations are patently untrue.

For example, the prosecutor accuses Israel of preventing the flow of humanitarian aid, even though according to well verified data, Gaza has received enough aid to feed every man, woman, and child twice over. (There is nonetheless an apparent food shortage as both Hamas and UNRWA employees steal much of the food.) The prosecutor accuses Israel of closing the crossings by which aid enters the Gaza Strip (the crossings are actually open and active despite Hamas’ frequent bombings of the crossings) and, of course, Israel stands accused of genocide, despite taking historic measures to protect civilians, and producing the lowest civilian to combatant casualty ratio for a conflict of this type in human history.

Moreover, by requesting arrest warrants against both Israeli leaders and Hamas terror operatives, Prosecutor Khan has effectively drawn an astonishing moral and legal equivalence between Israel, a modern Western democracy with a famously independent judiciary, and one of the world’s most notorious terror groups — and a parallel between the October 7 terrorist massacre, and the self defense of the very victims of that massacre.

To be clear, the arrest warrants have not yet been issued, but  are currently being presented to the ICC’s panel of 18 judges for approval. Yet this arrest approval process is not a trial in which both sides present evidence and make arguments. To the contrary, the prosecutor needs to show merely that there are “reasonable grounds” for the arrest warrants, but without the accused having a right to reply or to present evidence as part of that decision. This process is roughly comparable to what American courts call a “Grand Jury hearing,” and American lawyers have an old  joke that in such hearings the evidentiary requirements are so low that, “a Grand Jury will indict a ham sandwich if you ask them to.”

So in a cruel paradox, by the ICC’s own rules, evidence is irrelevant, truth is irrelevant, and even reality itself is irrelevant. It is enough that the ICC prosecutor makes an accusation, and then world leaders who never even agreed to the Court’s jurisdiction can find themselves subject to its arrest powers. Furthermore, there is no guarantee that Khan will stop with Israeli leaders — by Khan’s logic, as expressed in this prosecution, it is possible that IDF soldiers and former IDF soldiers (in other words, most Israelis) could eventually face international arrest as well.

So what happens now?

It is not clear how long it will take the judges to approve the arrest warrants — deliberations could take anywhere from days to months. It is rare that the ICC judges would refuse to approve an arrest warrant, but this case may be different because the United States has announced that it will take action.

Fearing that America’s enemies could use the ICC as a weapon against American leaders and soldiers, the US not only refused to join the ICC, but also passed a bipartisan law in 2002 affirming that America would protect American service people and allies against a weaponization of the Court. A bipartisan bill currently working its way through Congress envisions placing sanctions on the ICC prosecutor, the judges, and their families. This would limit their ability to travel, and also may shut down their bank accounts and other access to basic day to day life necessities — in other words, this is a powerful diplomatic tool.

Although it is not clear what will happen in the coming days and months with respect to the ICC, one thing is clear: Hamas, which cannot defeat the IDF on the battlefield, is attempting to weaponize international law to defeat Israel off the battlefield. Whether they will succeed, and whether other terror organizations use such weapons in the future, depends on how Israel and America respond in the days to come.

An important additional note: many throughout the world, including some Israelis, blithely say that some Israeli leaders are “criminals” and deserve to be arrested (a common refrain in politics). Yet the specific claims against Israeli leaders in this case do not relate to normal domestic political issues, such as corruption, judicial reform, or the like. To the contrary, the case against Israel relates to issues on which almost all Israelis agree — specifically the performance of the IDF and Israel’s self defense.

In fact, it is notable that the Israeli prime minister is not the “Commander in Chief ” of the armed forces as the US president is. Rather, that role belongs to the war cabinet, which is composed of Israeli representatives from the right, left, and center, and enjoys broad public support. In other words, a criticism of the IDF or of Israel’s self defense in Gaza is not merely a criticism of Netanyahu as some like to claim, but rather of the entire State of Israel and the broad consensus of the Israeli people.

Daniel Pomerantz is the CEO of RealityCheck, an organization dedicated to deepening public conversation through robust research studies and public speaking.

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The Hostages Should Be an International Issue — Not Just an Israeli One

People walk past images of hostages kidnapped in the deadly Oct. 7 attack on Israel by Hamas from Gaza, in Tel Aviv, Israel, April 11, 2024. Photo: REUTERS/Hannah McKay

The world witnessed an unprecedented crisis when citizens from 24 countries were abducted by Hamas and taken into Gaza as hostages on October 7, 2023.

Even now, there are hostages still being held by Hamas with 22 foreign nationalities: The United States, Argentina, Austria, Brazil, Bulgaria, Canada, Colombia, Denmark, France, Germany, Hungary, Lithuania, Nepal, Poland, Portugal, Romania, Russia, Serbia, Tanzania, Thailand, the UK, and Ukraine.

Despite the representation of countries across the globe, the international outcry has been surprisingly — and sadly — muted. The “hostage issue” has largely been perceived as an Israeli one, leaving the responsibility of bringing them home to the IDF and the Israeli government.

According to Daniel Shek, a former Israeli diplomat and spokesperson for the Hostages and Missing Families Forum, the international dimension of this crisis is crucial. He warns that the unprecedented kidnapping on October 7 should concern the global community, because something similar could happen anywhere in the world, especially if those responsible are not severely punished for it.

Shek’s assessment of the international response is blunt: “Sufficient? Certainly not.”

There has not been a significant, concerted effort among the various countries to work together or form some kind of pressure group to release the hostages, he says. Most of the concrete efforts to try and resolve the situation have been individual or independent of each other.

In late October 2023, Russian diplomats met with a Hamas delegation in Moscow and insisted that special attention be paid to eight Russian-Israeli citizens being held hostage in Gaza. By November, three of these hostages were released, including Roni Krivoi, a sound engineer working at the Nova Festival when it was attacked (one of the few men released from captivity during this time).

Following the initial release of 17 Thai citizens, two additional Thais were released from captivity in November. A Thai Muslim group claimed its efforts were key to ensuring the release of those hostages. “We were the sole party that spoke to Hamas since the beginning of the war to ask for the release of Thais,” Lerpong Syed, President of the Thai-Iran Alumni Association told Reuters.

One significant effort occurred on April 25, when the leaders of 17 countries joined US President Joe Biden in the first official joint statement calling for the release of the hostages. Among the countries were Argentina, France, Germany, and the UK:

We call for the immediate release of all hostages held by Hamas in Gaza for over 200 days. They include our own citizens. The fate of the hostages and the civilian population in Gaza, who are protected under international law, is of international concern…We strongly support the ongoing mediation efforts in order to bring our people home. We reiterate our call on Hamas to release the hostages, and let us end this crisis so that collectively we can focus our efforts on bringing peace and stability to the region.

Since this statement, however, concrete efforts have been minimal. Biden has expressed a moral commitment to bringing Israeli-American hostages home and has met with them and their families on multiple occasions, but his success in doing so has been limited. There are still eight American citizens being held hostage in Gaza, five of whom are presumed alive.

Liat Beinin Atzili is a survivor.

It was my honor to welcome her to the White House this evening, hear firsthand about her resilience despite enduring the unthinkable, and promise her that my work isn’t done until we secure the release of all remaining hostages held by Hamas.

— President Biden (@POTUS) July 9, 2024

When compared to previous high-profile hostage situations, such as the 1979 Iranian hostage crisis, the disparity in global attention is unmistakable. The Iranian hostage crisis gripped the American public and media, whereas the Israeli hostages, including US citizens, have not gained similar levels of attention from the American people.

In 2014, when 276 girls were kidnapped from a school in Chibok, Nigeria, by the Islamist militia group Boko Haram, a campaign for their return drew widespread international support.

The “Bring Back Our Girls” campaign included endorsements from prominent figures like Michelle Obama and Hillary Clinton. In stark contrast, the Israeli hostages’ plight has not seen comparable global outrage. This is despite the hard work of hostages’ families, who fly across the world to fight for their loved ones’ freedom.

In some cases, the hostages have even faced negative attention — a phenomenon unheard of in past crises. Posters of the hostages have been torn down around the world, and some media personalities have questioned the legitimacy of reports from the October 7 attacks.

Shek sums up the universal nature of this cause.

“It doesn’t really matter on which side of the political divide you are in Israel, the US, in France, or anywhere else. It doesn’t really matter on which side of the Israel-Palestine divide you are,” he says. “It’s unjust that innocent civilians have been held for nine months under inhumane conditions. They have been deprived of their rights under international law, and have had no decent medical care or access by the Red Cross. This should concern anyone who cares about human rights.”

The fact that 120 hostages from 22 different countries were taken from Israel by terrorists and remain in Gaza until today demands urgent international action. This hostage crisis is not only an Israeli issue, but a global one.

So, world, where is your outrage? Why don’t you fight to bring your people home?

Miriam Bash is from Livingston, New Jersey, and currently studying Psychology and Marketing at Washington University in St. Louis. Outside of class, she is involved in the TAMID Group at WashU, and is an active member of her campus’ Hillel and Chabad organizations. She is an intern at HonestReporting, where a version of this article first appeared.

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Hamas Leader Deif’s Deadly Hideout: Media Overlook the Strategic Civilian Shield

Hamas executed one of its military commanders for informing the Israelis on the hideout used by Mohammad Deif (pictured above) during last summer’s Operation Protective Edge. PHOTO: Channel 2 News.

The IDF carried out one of its most significant operations in on Saturday since the start of the war against Hamas, executing a strike that targeted Mohammad Deif, one of the masterminds behind the October 7 attack.

Eliminating Deif, the leader of the Izzadin al-Qassam Brigades and Hamas’ second-in-command in Gaza, would be a significant blow. While there’s no official confirmation of his death, and Hamas claims Deif is “fine,” it’s worth noting that Saudi news network Al-Hadath reported that his deputy, Khan Younis Brigade Commander Rafa Salama, who was with Deif, was killed.

Deif, nicknamed “The Guest” for his habit of frequently changing locations to avoid detection, has long been hunted by Israel for his involvement in planning and executing numerous terror attacks throughout the 1990s and 2000s, including the 1996 Jaffa Road bus bombings.

Some facts about Saturday’s incident were immediately clear.

First, it took place in the al-Muwasi humanitarian zone near Khan Yunis in southern Gaza, and the IDF is investigating reports that a number of civilians died.

Second, the airstrike targeted senior Hamas operatives.

This latter point was highlighted in almost every international media outlet, noting that Deif might have been killed and invariably referring to him as the Hamas “military chief” or the “architect of October 7,” with a few notable exceptions.

The BBC botched an initial report on July 13.

On its YouTube channel, the broadcaster framed the incident as “90 killed and 300 injured” in an Israeli strike on a Gaza “humanitarian area,” and only mentioned later in the report that Israel was targeting senior Hamas commanders, including Deif.

Similarly, CBS News neglected to mention Deif in its headline, describing it instead as an “Israeli attack on the southern Gaza Strip” that left “at least 90 dead,” according to the Health Ministry in Gaza.

The Irish Times reported the death toll as fact, without any attribution, in a piece headlined, “Gaza: At least 90 killed, 300 injured in Israeli airstrike on designated humanitarian zone.”

The focus on the strike taking place in a designated humanitarian zone explains why there were civilian casualties. However, not a single media outlet commented on the fact that senior Hamas commanders, including Deif, were intentionally hiding there. This omission ignores the blatant reality that Hamas exploits civilian areas for cover, leading to inevitable deaths.

Journalism students are often taught about using the “five Ws” – Who? What? When? Where? Why? – to gather the essential points for a story. There used to be another critical question, one that many journalists now forget to ask: “How?”

How did Palestinian civilians die in an Israeli airstrike calculated to take out senior Hamas commanders?

The media should report the patently obvious answer: Deif and his terror acolytes chose to hide in the al-Muwasi humanitarian zone, using the men and women sheltering there as human shields.

Hamas leaders embed themselves within civilian populations because they want Palestinians to die, with Yahya Sinwar even describing civilian deaths as “necessary sacrifices.”

On Saturday, The New York Times detailed how Hamas terrorists, dressed in plain clothes, “hide under residential neighborhoods, storing their weapons in miles of tunnels and in houses, mosques, sofas – even a child’s bedroom – blurring the boundary between civilians and combatants.”

While the Israeli military makes every effort to minimize civilian harm – including, in this case, using accurate visualizations of the “open, wooded area” and acting on additional intelligence information–unintended casualties are a tragic consequence of Hamas’ strategy.

The fact is that Israel has a duty to defend its citizens and protect them from further harm. In the context of its war against Hamas in Gaza, this means eliminating the terrorists who perpetrated the very massacre that started this war.

The author is a contributor to HonestReporting, a Jerusalem-based media watchdog with a focus on antisemitism and anti-Israel bias — where a version of this article first appeared.

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A Loss in Ukraine Would Grievously Harm America

Russian President Vladimir Putin delivers a speech during a session of the St. Petersburg International Economic Forum. Photo: Reuters/Maxim Shemetov

The Russian invasion of Ukraine has posed a direct challenge to the national sovereignty of an independent country, just as it continues to lead to extensive suffering, especially due to the attacks on civilian infrastructure.

Yet beyond these direct consequences for Ukraine and the Ukrainians, the invasion represents nothing less than an assault on the established international order, an effort to redraw recognized state borders through the use of force. Such a threat is also a challenge to the United States, as the primary guarantor of that order — one of many reasons why Washington has interests in the outcome.

The specifics of Moscow’s goals have remained ambiguous. Some statements by President Putin provide evidence that one maximalist war goal includes the complete obliteration of Ukraine as an independent polity altogether, far more than limited effort to adjust borders or to support the Russian population exclaves in the Donbas. The ultimate outcome may be less — something in between — e.g., seizing the Black Sea coast while leaving a landlocked Ukraine as a pseudo-independent state surrounded by Russia. In any case, the abrogation of international legal norms is profound.

In addition, the violation of Ukrainian national sovereignty — whatever the ultimate outcome — goes against the Budapest Memorandum of 1994, when Ukraine surrendered its Soviet-era nuclear arms in return for security guarantees from Russia, the US, and the UK. Consequently, a further casualty of the war pertains to nuclear non-proliferation. In the future, no state will be inclined to give up its nuclear weapons in return for diplomatic guarantees that can turn out to be worthless, as Ukraine has had to learn.

One grand achievement of the late 20th century was the establishment of a zone of international law guaranteeing the national sovereignty of the states across the larger European space. The lessons of two world wars and the Cold War seemed to have been learned. This is no longer the case.

Russia has shown that international borders are again just as vulnerable as was the Polish border to the German invasion of September 1939. An awareness that Europe must prepare for war, if hopefully to prevent it, has begun to spread across the continent, as evidenced by German Prime Minister Olaf Scholz’s Zeitenwende speech to the Bundestag of February 27, 2022.

If the Federal Republic of Germany can begin, albeit sluggishly, to overcome its historical pacifism, so can others. Poland has emerged as a particularly strong military power. More NATO member nations are moving toward devoting the 2% of GDP to security, to which they obligated themselves in the Wales Pledge of 2014, and Sweden and Finland have joined the alliance.

To be sure, Russia has not been able to achieve victory. The limits of its military power have been exposed, and the domestic stability of the Putin dictatorship is far from guaranteed. Nonetheless, Ukraine has not been able to deliver a decisive counter-blow. Russia might yet win. It is therefore prudent to consider the geostrategic consequences of a conclusion that involves Russian gains.

A Russian capture of the coast from Crimea to Transnistria would turn the Black Sea into a Russian-Turkish condominium, leading to stronger ties between Ankara and Moscow, and therefore loosening Turkey’s ties to NATO.

Russian domination in Ukraine would also strengthen Moscow’s hand in Central Asia, while accelerating its partnerships with Iran and China, the new anti-American axis. Furthermore, if Russia prevails in Ukraine, one should expect Moscow to pursue interests in the already flammable Balkans, at which point the European order will be further undermined.

Would the fall of Kyiv lead to another Sarajevo and the historical conflagration indelibly associated with the name of that city? That is a worst case scenario, but in the era of great power competition, in which Putin himself has engaged in nuclear saber-rattling, there is reason enough to face up to the really-existing dangers.

Leaving aside the values considerations — the human rights violations and war crimes faced by the Ukrainians — and even leaving aside the international law implications of the Russian invasion, it is vital that the United States take very seriously the expansionist ambitions of a revanchist Russia intent on asserting itself throughout parts of the formerly Soviet world and, in particular, into the heart of Europe.

Conquering Ukraine is a steppingstone to undermining NATO and the Atlanticist security structure. It is therefore hardly surprising that the US has decried the invasion and provided Ukraine with considerable aid to counter Russia.

Yet this support has been insufficient. Initially the American public rallied to support Ukraine, and that popular support seems initially to have pushed a cautious Biden administration to lean into aiding Ukraine more vigorously. But the war has dragged on, and some war-weariness has set it in. Biden himself has failed to make effective use of his bully pulpit to make the strong case for supporting Ukraine, with the result that public opinion has begun to flag, with isolationist strands on the left and the right gaining ground

In addition, unspoken limits to military aid have become evident. Ukrainian requests for specific systems have first been turned down as impracticable, only to be granted belatedly. In other words, for all the American verbal willingness to support Ukraine, the arms provided have been sometimes too late, sometimes too little, and sometimes too old.

For a while it seemed that the Biden administration was only providing sufficient support for the Ukrainians to keep them fighting but not enough to achieve victory. This hesitation reflects indecision in the administration concerning the risks in achieving a clear Russian defeat. Does Washington prefer vacillation to victory? There is no evidence of a commitment to win the competition with Russia — in the sense of former President Reagan’s spirited formula “we win, they lose.” It is Ukraine that is paying the price for this timidity toward Moscow.

It is useful, if worrisome, to consider US policy at this point toward the Ukraine War against the backdrop of the conclusion of the Afghanistan War. The differences are obviously enormous; most importantly, Afghanistan involved an international effort led by the US, at enormous cost in blood and treasure. President Trump was therefore focused on bringing that war to an end, and his administration agreed on a process with the Taliban to wind it down . There is an argument that President Biden was not obligated to carry through with that Trump-era agreement because the Taliban had not lived up to the terms it had promised. Nonetheless Biden did choose to withdraw the American troops in a way that the world has come to recognize as an embarrassing defeat.

Losing in Ukraine — like the loss in Afghanistan — would represent an enormous blow to American credibility as a force for security and stability across the world. The implications for Taiwan and other western Pacific nations will be clear. It is this geostrategic map that shows why it is vital for the proxy forces of the West in Ukraine to prevail, just as they must in Gaza.

The US is fortunate to have partners willing to fight for their own defense, but it is crucial for Washington to provide support. Insufficient backing will have grievous implications for American interests.

Russell A. Berman is a Fellow at the Hoover Institution and Professor at Stanford University. He previously served as Senior Advisor on the Policy Planning Staff of the US Department of State under President Trump. A version of this article was originally published by The BESA Center.

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