Lawfare—using litigation to upend political leaders and causes—is suddenly prominent in both the United States and Israel. Indeed, the current corruption trial in Tel Aviv involving Israeli Prime Minister Benjamin Netanyahu is cut from the same cloth as Manhattan District Attorney Alvin Bragg’s bid to upend Donald Trump’s presidential aspirations. Both men face charges for events that took place years ago and were at worst minor sideshows. Bragg inflated charges of corruption out of Donald Trump’s alleged 2016 hush-money payments to former porn star Stormy Daniels, who claims she had a one-night stand with Trump back in 2006. Netanyahu is charged with accepting champagne, cigars, and other gifts between 2011 and 2016 from Arnon Milchan, an Israeli Hollywood film producer, and from James Packer, an Australian billionaire, while angling to get better press coverage of his political fortunes.
Trump, when charged, was in the midst of a presidential campaign. Netanyahu now must take time off from his day job of running a country and military to resist a deeply political legal attack, which could undermine his legitimacy both at home and abroad.
The current American legal rule that bars all prosecutions against a sitting president would work every bit as well if implemented in the Israeli parliamentary system. And the much-maligned recent Supreme Court decision in Trump v. United States (2024) that confers broad immunity for acts done by the president looks better each passing day. The affairs of a nation require the undivided attention of a president or a prime minister and of those who work with or against him. It would be hazardous should leaders be forced to give evidence or testify in any lawsuit that could subsequently emerge.
It is idle to say that the inability to prosecute the president or prime minister puts these individuals “above the law.” Absolute immunity for key official acts is in the constitutional DNA for judges and prosecutors, yet no one says that prosecutors like Alvin Bragg of Manhattan or Jack Smith of the US Department of Justice are above the law, even though they too enjoy an absolute immunity from suits. The challenge here is to use, where appropriate, other sanctions against persons who use their authority, whether it be an impeachment proceeding in the United States, a vote of no confidence against Netanyahu, or disciplinary proceedings against wayward judges or prosecutors.
A legal threat from abroad
Only time will tell in Tel Aviv what will happen to Netanyahu, but for now, the far greater peril lies in the rogue decision of the International Criminal Court on November 27 to issue arrest warrants against both Netanyahu and Yoav Gallant, his former minister of defense, alleging various crimes against humanity in connection with their activities in Gaza in response to the sneak attack of Hamas on October 7, 2023. That court is distinct from the International Court of Justice set up by the United Nations in 1945 to resolve disputes between consenting states and to advise the UN on legal matters. The ICC, for its part, was established under the Statute of Rome, and neither the United States nor Israel has consented to its jurisdiction, which, as US Secretary of State Antony Blinken bluntly noted, means that the ICJ has no jurisdiction over the matter. The ICC made light of these jurisdictional objections in its indictment, but the point is more serious than that because the ICC relied on Article 12—preconditions to the exercise of jurisdiction—which states: “[T]he Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred . . .”
The ICC first concluded that Palestine was a state, given its observer status at the United Nations. It then took the bolder step of claiming that jurisdiction was obtained because of the Israeli actions that took place in Gaza (and for good measure, the West Bank). That assertion of jurisdiction represents a radical departure from traditional international law. There, nations find themselves isolated in a state of nature with each other, so that they cannot be forced to undertake special obligations to each other simply because a large number of other independent states find it to their advantage to cede jurisdiction to some third party to resolve their disagreements. Just that commonly happens when two nations submit a boundary dispute to some independent arbitral panel. Those nations cannot bind states, like Israel, that have consistently refused to play by those rules out of a belief that the deck is stacked against them, given the composition of the ruling body.
That proposition does not mean, however, that customary rules of international law (which are never formed by vote) should be lightly disregarded. For example, in The Paquete Habana (1900), the US Supreme Court enforced customary international law against the United States when American privateers seized small coastal fishing vessels along the Cuban coast during the Spanish-American War. It is one thing to accept these rules and quite another to submit to a hostile court, where here the wisdom of the rule is evident from the substance of the ruling. The allegations in ICC cases must allege “grave” crimes for the court to have jurisdiction. But to make good on that requirement, the ICC should issue the warrant for the arrest (which can be enforced only by member nations) only if the prosecutor (Article 53) finds on the basis of “available information” that a “reasonable basis” exists where that investigation should cover under Article 54 “all facts and evidence relevant” to the case, a standard that carries over to Article 58 to issuing a warrant for arrest.
And it is just by this standard that the substantive claim falls far short in its charge that Netanyahu and Gallant “each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.” At this point, there was only a regurgitation of the South African complaint of December 2023, without any factual investigation of the full record that would require the prosecutor to look at the broad, illegal provocation by Hamas on October 7, 2023, and the consequences:
- Hamas’s spree of torture and killings during that attack;
- Hamas locating its fortifications under hospitals and schools;
- Hamas using its own citizens as human shields to ward off attacks;
- Consistently using fabricated statistics of death and injury;
- Hamas’s refusal to separate combatants from ordinary citizens;
- No acknowledgment of any persons killed by Hamas, whether by revenge or by wayward rockets directed at Israel;
- Repeatedly intercepted food convoys sent from Israel and elsewhere, diverting aid from the civilian population for whom it was intended.
Nor was there any acknowledgement of the extensive efforts by Israel before October 7 to let Palestinians obtain work permits in Israel and to receive medical care from the Israelis both before and during the war; that the Israelis, more than citizens of any other nation, including the United States, gave warnings and directions intended to move Gaza residents to safer places; or that the Egyptian government refused to establish camps that would allow the Israelis to attack unimpeded the massive network of tunnels that Hamas had constructed throughout Gaza.
Notwithstanding that the warrants were issued without looking at all relevant facts, those incurably defective documents received powerful endorsements throughout much of the Arab world. Thus, the Iraqi government “values the courageous and just stance taken by the International Criminal Court in issuing arrest warrants against the head of the Zionist entity’s government and its former defense minister.” Note the use of the standard phrase “Zionist entity,” a crude effort to delegitimize Israel as a state, which has its own rich ironies. The indictment also receives wholly one-sided support from Amnesty International and progressive publications such as MR Online, which also condemned President Joe Biden—here doing the right thing—who wrote after the warrants were issued: “The ICC issuance of arrest warrants against Israeli leaders is outrageous. Let me be clear once again: whatever the ICC might imply, there is no equivalence—none—between Israel and Hamas. We will always stand with Israel against threats to its security.”
Profound regional changes coming
It is now clear that the political landscape has massively changed since the abrupt collapse of Bashar al-Assad’s brutal dictatorship in Syria, after which he obtained asylum from Russia. But it is notable that the unparalleled atrocities of Assad and Vladimir Putin, as well as the repeated efforts of the Iranians to promote mayhem throughout the Middle East and especially against Israel, have not yet provoked a peep from the ICJ or its supporters.
Israel should defy the ICJ, and the court’s member nations should follow France in refusing to honor an arrest warrant issued by a corrupt court at the instance of its misguided prosecutor, Karim Khan.