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How Israel sees the ICC potential warrants against its leaders

The news that the ICC is considering arrest warrants for Israeli leaders affects how Israel sees itself in the world.

- May 23, 2024
The ICC, the International Criminal Court in The Hague, announced it would see arrest warrants for Israel's prime minister and Hamas leaders.
International Criminal Court, The Hague (cc) OSeveno.

On May 20, Karim Khan, the prosecutor for the International Criminal Court (ICC), announced that he would file applications to issue arrest warrants for several individuals involved in the fighting between Israel and Hamas. He named Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim al-Masri, and Ismail Haniyeh. In Israel, the warrants are for Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant.

How will the Israeli public react to these potential warrants? How will the right-wing government react? These are obviously not the only questions raised by the ICC’s action. But thinking about how states react to international laws that directly impinge on their sense of self and their ability to conduct foreign policy is useful for understanding the motivations behind state behavior. 

Israel is a country whose foreign policy is subsumed within security policy. It is involved in a protracted conflict, with regular outbreaks of violence – sometimes severe. And Israel is a close ally of the United States. 

So how Israel reacts matters for Middle Eastern politics and America’s own foreign policy and possibly its domestic politics. Here are some of the competing forces at work.

Public opinion has reinforced government policy

Historically, Israelis have cared about what close allies think of the country’s foreign and security policy, but, particularly for Jewish Israelis, only up to a point. These preferences both reflect and, at times, help shape government policy on security matters. But public opinion mostly reinforces the government’s ability to take the lead on foreign and security policy. 

The highly personalized and centralized nature of Israeli foreign and security policymaking has often given prime ministers considerable leeway to follow their own priorities when they believe the security of Israel is threatened. 

Even the U.S. is limited in its influence. The U.S. government opposed Israel’s nuclear program in the 1960s, striking first in the 1967 Six-Day War, and the 2023 ground invasion of Gaza – but Israel still went ahead. 

Israelis were already worried about being isolated in the world

Before the ICC prosecutor’s announcement, Israelis were alarmed that their country was globally isolated due to the way the war in Gaza has been handled. Although the government is intent on continuing its military assault, the latest Peace Index shows that almost half of the Israeli public (49.8%) thinks that doing so “very greatly harms” Israel. Additionally, 33.1% think it “harms” Israel. (The numbers for the Jewish populace are 51% and 33.4%, respectively.)

The survey also found that 70.4% of Israelis believe that Israel is “relatively isolated,” though it has the support of a “very small number of allies.” Among the Israeli Jewish population, that number rises to 74.3%.

That isolation, they fear, will mean no-one will come to their aid when they are threatened, and that Israeli behavior will give the international call for boycotts of Israel momentum, harming the Israeli economy. They also worry about a loss of American backing, and unfair treatment in the international legal system.

On March 25, the United States decided not to veto a U.N. Security Council resolution calling for an immediate ceasefire between Israel and Hamas (as well as the immediate release of all hostages). A survey conducted soon after found that 16.4% of Jewish Israelis thought “to a very large extent” this signaled an American retreat from unreserved support for Israel, 34.7% thought it “to a fairly large extent,” and 26% thought it “to a fairly small extent.” Only 11% thought the U.S. vote did not indicate this at all.

The question is, what effect would the ICC warrants have on Israeli public opinion? Would it rally support for Netanyahu, or would it exacerbate the Israeli public’s concerns about the government’s conduct of the war?

Israelis have long been suspicious of international courts

Jewish Israelis across the political spectrum already viewed the ICC with suspicion. Fear of politically motivated decisions is what kept Israel from ratifying the Rome Statute by the time it became effective in 2002, though Israel did originally sign the document.

From 2001 to 2003, a Belgian court tried to prosecute Prime Minister Ariel Sharon for war crimes, under Belgium’s universal jurisdiction laws. In 2004, the International Court of Justice (ICJ), in an advisory opinion, stated that the security barrier Israel was building mostly along the route of the border with the West Bank contravened international law because it jutted into occupied Palestinian territory. 

In January 2024, the ICJ ruled that Israel may have violated the Genocide Convention in its attack on Gaza. The Israeli government vigorously disputed the charge. That same month, one public opinion survey found that although the ICJ did not (yet) accept South Africa’s argument that Israel is committing genocide, Israelis had a negative view of the court order that Israel must minimize harm to civilians. Among Israeli Jews, about half thought the ruling was either “very harsh” or “fairly harsh,” while 33.6% thought it was “fairly lenient.”

Symbolic threats matter as much as physical threats

In our book on Israeli politics, Harold M. Waller and I argued that Israel perceives three levels of threat. At the personal level, individual Israelis feel threatened by terrorism and war. And at the collective level, the state itself is under threat: its borders, its political integrity, and the safety of its citizens.

At the symbolic level, Israel as a Jewish state meant to provide a place for Jews to live in their own country is threatened by delegitimization. Threats at this level come from efforts to undermine the Jewish state’s “right to exist.” 

To Israelis across the political spectrum, the announcement of possible arrest warrants for Israeli political leaders alongside Hamas leaders falsely equates Israel and Hamas. 

Israel understands itself as an internationally recognized democratic state that is defending its population in the wake of an attack that killed more Jews than on any other day since the Holocaust, arguing Israeli forces try to avoid civilian casualties if possible. Israel’s leaders note that the U.S. and European Union label Hamas as a terrorist organization that kills its rivals and deliberately seeks to kill civilians.

The ICC announcement will likely harden Israeli attitudes

The cornerstone of Israeli foreign and security policy is collective Jewish and Jewish Israeli memories of historical traumas. Israel’s history reflects the centuries of persecution in Europe, the Holocaust, the Arab invasion of Israel at the moment of its establishment in 1948, threats from Arab neighbors, and terrorism from militant groups. All of these traumas have a profound impact on Israeli foreign policy.

It is too soon to know the full effect of the specter of the ICC arrest warrants. It is possible that the threat itself will spur more opposition to Netanyahu and the way he has guided the Israeli military response. Whether it does or not, historical patterns suggest that both the Netanyahu government and a majority of Israelis will harden their views about the war – and about a postwar settlement or negotiations with the Palestinians. And it’s likely Israelis will feel an even greater sense of international isolation.

This is not to say that international law should only be applied when countries are willing to abide by the rules. But it is important to think through the fallout.

Brent E. Sasley is a 2024-2025 Good Authority fellow.