The signs are mounting that the International Criminal Court (ICC) is weighing an indictment against Israeli Prime Minister Benjamin Netanyahu and other top Israeli officials over Israel’s conduct of its war against Hamas in Gaza. This would be an earthquake and could be seen as a case of selective justice that ends up helping the beleaguered prime minister politically.

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The ICC, which was established in 2002, is more of a club of about 125 countries that tries to make the rules than a true manifestation of consensual “international law” — and it occupies a rather fuzzy position vis-à-vis non-member states like the United States and Israel.

With a rather modest prosecutor’s budget (about $185 million, of which only about half goes to the prosecutor’s office), it boasts only a handful of convictions, and it has never indicted the leader of a democratic country. It has gone after Russia’s Vladimir Putin, Sudan’s Omar al-Bashir and some other miscreants from dictatorships, like former Libyan leader Moammar Ghadhafi’s son Saif. Netanyahu is already a criminal defendant at home on corruption charges and a tremendously unsympathetic figure to many, but he is not in that despotic league.

Israel has a problematic democracy, because of the longstanding occupation of the West Bank and east Jerusalem where millions of Palestinians live — but it is no Sudan.

Have other democratic countries not been involved in wars against terrorist groups that caused massive damage to civilians as in Gaza? Obviously they have, in particular the US and Britain and the coalitions that fought the Iraq war, tried to eradicate al Qaeda and ISIS, and had anything to do with the Libya and Yemen meltdowns of the 2010s. But when a country has a viable legal system, as Israel does, the ICC’s inclination has been to keep things domestic.

The tricky question of jurisdiction

If the ICC has now decided to throw this tradition away, there is still the enormous question of jurisdiction, beginning with the odd procedure by which Palestine was admitted to the ICC almost a decade ago.

The court operates by “state consent,” which means it only accepts states. While the UN General Assembly did grant Palestine non-member observer status in 2012, it is not recognized as a state by most major powers and economies, including the US. (Recently, some momentum has gathered to change that longstanding reality. The UN has taken steps to grant more weight to Palestinians, and the UK among other countries has suggested it will consider recognizing a Palestinian state.) But in 2015 the ICC stepped in to decide that implicitly it is, by accepting it — without consulting the Assembly of States Parties (ASP), representing ICC member states.

Moreover, the ICC can only take on cases that have occurred on the territory of member states — but Palestine, even if it exists, does not have recognized territory. So again, the ICC judges, in a majority but not unanimous vote, decided in 2021 that Palestine comprised the West Bank, Gaza and East Jerusalem (the last of which has been annexed by Israel).

That reflects the fairly random ceasefire lines of 1949 that ended the war that accompanied Israel’s own declaration of independence. The West Bank and East Jerusalem are the areas of British Mandate Palestine seized in that war by Jordan, while Gaza was seized by Egypt — but neither country now lays any claim to them.

Israelis and Palestinians cannot themselves agree. Many Israelis want no part of annexing the West Bank whole, fearing for the Jewish majority in their country. Hamas, meanwhile, has little interest in these borders, claiming all of Israel for the Palestinians. An ICC indictment would mean that the court has ruled meaningfully on borders.

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Then there’s proving the charges

Lastly, there is the question of the charges. To justify any war crimes charge against Israel’s leaders, the court would have to deem Israel’s actions to be disproportionate to what was needed in response to the Hamas attacks on October 7.

No matter how the court spins this, for instance if it were to claim it was only looking at a particular crime and not the aggregate, this will be perceived by its many critics as being subjective (in addition to selective).

And there will be no escaping factoring in Hamas’ manifest policy of using the population of Gaza as a human shield. Even though the media has hardly mentioned this, established war crimes jurisprudence makes clear that civilian sites lose their protected status if they are in effect turned into military sites. (As journalists have lacked access to active war zones in Gaza, it is difficult to assess how actively Hamas is using civilians as human shields, but the terrorist group is known to embed itself in population centers and has been widely accused of making use of hospitals and schools.)

If the court ignores this, terrorists everywhere will take succor from the idea that they can commit atrocities and then hide behind human shields, daring their pursuers to risk international arrest warrants. The use of human shields is not a new war tactic, but this extent, with the terrorists hiding underground in a vast network of tunnels, has been rarely seen, and the ICC risks encouraging the practice.

Moreover, if the ICC were not to charge Hamas itself, that would be absurd. Hamas’ October 7 invasion — with the stated purpose of killing a maximal number of Israelis and with subsequent promises to do so again — was among the more classic acts of genocide in modern times, according to the UN’s own definition in the 1948 Genocide Convention, which places great emphasis on intent. There is nothing in the ICC’s own rules that limits its jurisdiction to officials, and indeed, Hamas is anyway the effective government of Gaza, certainly until Israel’s invasion.

The court has a lot of leeway, and therefore politics are inevitable. Could the highly respected chief prosecutor, Britain’s Karim Khan, be feeling some pressure to play his part in ramping up the pressure on Netanyahu? Last week, he pushed back on the pressure coming from Israel to block potential arrest warrants of leaders.

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A world fed up with war

That touches on issues that are not juridical but strategic. Netanyahu has not supported forging a pathway to a Palestinian state — which may well be necessary to effect US President Joe Biden’s grand design to establish a Western-Sunni-Israeli axis that would counter Iran and achieve the other (perhaps unspoken) goal of counterbalancing Russian and Chinese influence in the Middle East.

Netanyahu has done this because his far-right coalition is blocking the condition of restoring the Palestinian Authority to control in Gaza in place of Hamas — which many in Israel itself have in theory wanted for years. This self-defeating position is a big reason why the world is fed up with the war — on top of, of course, the appalling death toll in Gaza. 

The Netanyahu factor

Then there’s the convoluted process to actually get to court. Israel might try to buy time or derail the process by saying it is investigating on its own. This might not work (because Israel is not a member state, which matters) — but on the other hand it might (because Netanyahu’s effort to eviscerate Israel’s independent judiciary last year was stalled by mass protests).

After all, if Netanyahu had succeeded in killing the independence of the courts, Israel would not be able to claim it has a proper judiciary of its own, which is one of the triggers for ICC interference.

If in the end the ICC does issue an arrest warrant against Netanyahu, despite all the reasons not to, it would be handing a gift to critics who charge that the court is a bizarre construct with little oversight or accountability whose decisions and choices are not consistent or sufficiently explained to the public.

Moreover, it could be playing into Netanyahu’s hands politically. The same would be true if the court attempted a compromise and went after Israeli military figures, for example. By applying selective justice to Israel, it will walk right into claims he has already made that the case is an antisemitic calumny. This argument will be popular in Israel, and the opposition parties will most likely have to back it — especially if the indictments extend to military leaders.

Netanyahu is on the ropes politically and would almost certainly be trounced in an election held today. He’s dragging his feet on the war and proposals to end it, likely in hopes of keeping his government intact until circumstances change. An ICC arrest warrant would give him an effective axe to grind — and would not even prevent him from traveling to the one place he cares about, the United States.

Israel desperately needs Netanyahu to be gone, as does the region and the world. It would be a shame if the ICC inadvertently made that more difficult.

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Netanyahu: Israel in existential struggle against 'Hamas monsters'

Israeli Prime Minister Benjamin Netanyahu gives a statement in the Knesset.

As Israel marks Memorial Day on Monday, Prime Minister Benjamin Netanyahu said the war in Gaza is a battle for Israel's continuing existence.

"The war is about: it's either us, Israel, or them, the Hamas monsters," he said during the Memorial Day ceremony on Mount Herzl, where Israel's main military cemetery is located.

"Either existence, freedom, security and prosperity or extinction, massacre, rape and subjugation."

Seven months on from Hamas' unprecedented attack on Israel and Israel's ferocious military response in Gaza, Netanyahu vowed that Israel was "determined to win this battle" and that the enemy will "continue to pay a high price for its evil deeds."

A victory over Hamas would mean bringing all the hostages home, Netanyahu continued. Such a victory would "secure our existence and our future."

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Israel's Netanyahu says militants make up about half of Gaza deaths

 Israel's prime minister said on a podcast that almost half of those killed in the Gaza war are Hamas fighters, again addressing a civilian toll that has sparked global outrage. Benjamin Netanyahu maintained the overall toll is lower than that given by authorities in the Palestinian territory.

According to the health ministry in Hamas-run Gaza, at least 35,091 people have been killed in the territory during more than seven months of war between Israel and Palestinian militants.

Last week, the United Nations changed its estimate of the number of women and children believed to be among the civilians killed in the Palestinian territory, shifting from figures previously provided by the Hamas government in Gaza to numbers stated by the enclave's health ministry.

According to the ministry's figures, which have been cited by the U.N. since May 10, about 13,000 women and children have been killed in Gaza since the war began on Oct. 7, when Israel launched its strikes against Hamas in retaliation for the group's terrorist attack.

The estimate is significantly lower than the figures provided by the Hamas administration in Gaza and previously cited by the U.N., which had said almost 24,000 of those killed were believed to be women and children.

Speaking Sunday on the "Call Me Back" podcast, Netanyahu said the death toll in Gaza was around 30,000, and that Hamas fighters accounted for nearly half of that toll. He insisted to podcaster Dan Senor that Israel had "been able to keep the ratio of civilians to combatants killed... (to) a ratio of about one to one."

"Fourteen thousand have been killed, combatants, and probably around 16,000 civilians have been killed," he said. He gave similar figures in March during an interview with Politico, at a time when Gaza's health ministry was reporting a toll of at least 31,045, and again in an interview with Dr. Phil in early May.

Neither Israel nor Hamas have provided evidence to show how they reach their respective death toll estimates. The Hamas-run Gazan administration and health ministry do not differentiate between civilian and combatant casualties in their war tallies.

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The U.N. and a long list of countries, including the U.S., have voiced alarm at the number of civilian deaths in Gaza. United Nations rights chief Volker Turk warned in a statement last month that children especially were "disproportionately paying the ultimate price in this war."

Netanyahu's latest comment came amid intensified pressure from Israel's chief military supplier, the U.S., over the Palestinian toll from the war. Washington paused delivery of 3,500 bombs, and President Biden warned he would stop supplying artillery shells and other weapons if Israel carries out a full-scale invasion of Rafah, where around one million people are sheltering.

A U.S. State Department report said Friday that it was "reasonable to assess" that Israel has used American arms in ways inconsistent with standards on humanitarian rights but that the United States could not reach "conclusive findings."

The war in Gaza was sparked by Hamas' unprecedented Oct. 7 terrorist attack, which saw the militants kill some 1,200 people and take about 240 others hostage. About 100 of those captives are still believed to be alive and held in Gaza. Israeli officials believe more than 30 others are dead, but their bodies are still being held.

Israeli PM Benjamin Netanyahu, cabinet members lead Memorial Day events amid protests

Israeli Prime Minister Benjamin Netanyahu used a remembrance day speech Monday commemorating those killed in Israel's wars and in terror attacks to vow to continue the fight against Hamas, portraying it as an existential fight between opposing values.

The "eternal" values of Israel represented by those who died defending the country on Oct. 7 justified pursuing the battle with Hamas to its conclusion, Netanyahu said at the Remembrance Day for the Fallen of Israel's Wars and Victims of Terrorism ceremony at Jerusalem's Mount Herzl military cemetery.

"At the beginning of the current war, which began with the terrible massacre, we heard of countless acts of sacrifice, stories of heroism and displays of mutual commitment that will be remembered for generations," he said in an address which he was heckled by some relatives of hostages and the deceased and boycotted by others.

"Our loved ones who fell in battle represent our eternal values. Love of man and nation, love of country, willingness to sacrifice and belief in the righteousness of the path. This war is about exactly that. It's either us -- Israel, or them -- the monsters of Hamas.

"It's either existence, liberty, security and prosperity, or torture, massacre, rape and slavery. We are determined to win in this struggle. We will achieve the goals of victory, first and foremost, bringing all of our hostages home," he said.

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Some family members were heard shouting "You took my children," while footage circulating online showed a number of attendees walking out of event as Netanyahu took to the lectern.

Memorial Day events elsewhere also saw protests with demonstrators holding up signs saying "Their blood is on your hands" as Defense Minister Yoav Gallant spoke at Tel Aviv's Kiryat Shaul Military Cemetery.

Ahead of a speech by Security Minister Ben Gvir, families at an event at Ashdod military cemetery traded insults between those calling Gvir's hardline, military response a "criminal" ideology by people who had never served and supporters of the right-wing ruling coalition.

Peace activists staged alternative events, notably the annual broadcast of the Joint Israeli-Palestinian Memorial Day Ceremony which went ahead Sunday night, with parallel events held in London, New York and Los Angeles.

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The organizers, Combatants for Peace and the Parents Circle Families Forum preempted anticipated protests of the event, which commemorates Palestinian losses as well as those of Israelis, by taping the ceremony in advance.

The website hosting the ceremony was hacked minutes before it was due to go to air sabotaging the YouTube showing although viewers were able to see it on Facebook, according to the organizers.

The joint Memorial Day has come in for strong criticism and at least one legal challenge in Israel in past years.

Yuval Rahamim co-director of the Parents Circle Families Forum, an Israeli-Palestinian support group for families who have lost loved ones in the conflict, acknowledged the event would be seen as "provocative" by many Israelis, but argued the spiral of violence had to end.

"Many people have woken up to the reality that this conflict cannot go on. People are willing to stand up."

Speaking at a screening of the event at a Jewish community center in London, Magen Inon, whose mother and father were killed on Oct. 7, said that he did not want what had happened to his family to be used to justify more armed conflict.

"We felt as if our personal pain is being hijacked by the national cause," said Inon who now campaigns for peace.

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Israel’s total victory over Hamas not possible, says Biden official

Israel cannot achieve a “total victory” against Hamas, a top White House official has warned in comments likely to anger Benjamin Netanyahu.

Kurt Campbell, the US Deputy Secretary of State, said the Biden administration is struggling to see the vision of victory for Israel in Gaza.

“Sometimes when we listen closely to Israeli leaders, they talk about mostly the idea of ... a sweeping victory on the battlefield, total victory,” Mr Campbell said in a clear reference to the Israeli prime minister’s repeated pledge to defeat Hamas.

“I don’t think we believe that is likely or possible and that this looks a lot like situations that we found ourselves in after 9/11, where, after civilian populations had been moved and lots of violence that ... the insurrections continue.”

The official’s remarks signal further distance between Washington and the Netanyahu government just a few days after Joe Biden confirmed the US was withholding some weapons deliveries to Israel, fearing those bombs could be used in Israel’s offensive on the southern city of Rafah.

Separately, the prime minister of Qatar warned on Tuesday that the Middle East could face a wave of radicalisation unless there is a rescue plan for Gaza.

It comes as Israel has been battling a resurgent Hamas, re-emerging from pockets that were previously thought to be clear of militants.

Israeli tanks pushed deeper into eastern Rafah on Tuesday morning, entering three neighbourhoods. Residents told Reuters of clashes in the residential areas.

The IDF said its forces also expanded their operations in Gaza City’s Jabaliya neighbourhood in the north, striking “terror targets”.

Israeli troops claimed full control of the area at the end of last year.

The US now believes Israel had amassed enough troops outside Rafah for a full-on invasion, US officials told CNN. Washington is not sure that Israel will go ahead with the offensive.

The Netanyahu government has insisted that the invasion of Rafah, the only city in Gaza untouched by fierce fighting, is crucial to dismantling Hamas and achieving a lasting security for Israel despite the overwhelming global opposition to the move.

UN workers said on Tuesday thousands of displaced Palestinians fleeing Rafah are arriving at the central city of Khan Younis only to find the most basic infrastructure destroyed, with no water, no electricity and no sewage.

About 450,000 have heeded the IDF’s evacuation orders for the east of Rafah since last Monday.

The border crossing into Egypt on the outskirts of Egypt remained closed on Tuesday as aid groups urged Israel to resume operations there.

Neighbouring Egypt has been rattled by fighting on its doorstep so much that it is now considering options for downgrading its diplomatic ties with Israel, unnamed Egyptian officials told the Wall Street Journal.

While Egypt is not thinking about breaking off its peace treaty with Israel, a cornerstone of regional security, Cairo could pull its ambassador to Tel Aviv.

Israel on late Monday evening and Tuesday held muted celebrations for its Independence Day.

The main ceremony in Jerusalem decorating 120 IDF soldiers went ahead with Mr Netanyahu conspicuously absent.

In an alternative celebration, survivors of the Oct 7 massacre and families of the hostages on Monday night extinguished flames to symbolise their abandonment by the state. That same evening, Mr Netanyahu led a torch-lighting ceremony, which was pre-recorded and held without an audience in a clear attempt to avoid disruption after the prime minister was heckled at a Memorial Day event on Monday morning.

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Fierce fighting rocks Gaza after US warning of post-war 'anarchy'

Israel battled Hamas in Gaza on Monday, including in far-southern Rafah, despite US warnings against a full-scale invasion of the crowded city and of the threat of post-war "anarchy" across the Palestinian territory.

Clashes also raged in northern and central Gaza as Israel marked a sombre Memorial Day, which is followed by Independence Day from Monday night, more than seven months into the war sparked by Hamas's October 7 attack.

Israelis marked a moment's silence and Prime Minister Benjamin Netanyahu vowed that "our war of independence is not over yet. It continues even today... We are determined to win this struggle."

AFP correspondents in Gaza reported helicopter strikes and heavy artillery shelling in the east of Rafah, as well as battles in northern Gaza's Jabalia refugee camp and Gaza City's Zeitun neighbourhood.

Israel last week defied a chorus of warnings, including from top ally Washington, and sent tanks and troops into the east of Rafah, the city on the Egyptian border where some 1.4 million Palestinians had sought shelter.

This has sparked an exodus of nearly 360,000 people from Rafah so far, said the UN agency for Palestinian refugees UNRWA, which warned that "no place is safe" in the largely devastated territory.

US Secretary of State Antony Blinken said Sunday that Washington had not seen any credible Israeli plan to protect civilians in Rafah, and that "we also haven't seen a plan for what happens the day after this war in Gaza ends".

"Israel's on the trajectory, potentially, to inherit an insurgency with many armed Hamas left or, if it leaves, a vacuum filled by chaos, filled by anarchy and probably refilled by Hamas," he told NBC.

Fighting has raged in northern Gaza where -- months after Israel declared Hamas's command structure had been dismantled -- an Israeli army spokesman said there were "attempts by Hamas to rebuild its military capabilities".

"The army threw leaflets and sent a message on mobile phones warning everyone to leave Jabalia" refugee camp, said one displaced Palestinian, Umm Adi Nassar, after arriving in Gaza City.

"This is not the first time we have been displaced," she said. "Every time we try to return and settle, there is an invasion operation, and the army with its airplanes and tanks bombards the houses and kills people."

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- Moment of silence -

Hamas's armed wing, the Ezzedine al-Qassam Brigades, also said that its militants were engaged in ground battles in Rafah and Jabalia.

A strike overnight on a house in Rafah killed at least four people, said the city's Kuwaiti hospital.

Rafah residents on Monday received more evacuation orders through phone calls and text messages, prompting yet more people to leave their homes, witnesses said.

While Israel has vowed to destroy remaining Hamas forces in Rafah, the New York Times cited unnamed US officials as saying that both US and Israeli intelligence suggested the group's leader Yahya Sinwar was not hiding there.

Sinwar -- who has not been seen since the October 7 attack which Israel says he orchestrated -- "most likely never left the tunnel network" under southern Gaza's main city of Khan Yunis, the newspaper said.

Amid the fighting, Egyptian, Qatari and US mediation efforts towards a truce appeared to have stalled.

UN chief Antonio Guterres urged "an immediate humanitarian ceasefire, the unconditional release of all hostages and an immediate surge in humanitarian aid" into Gaza.

As Israel marked its Memorial Day, sirens sounded across the country at 11 am (0800 GMT), prompting a two-minute silence in honour of fallen soldiers and civilian victims of attacks.

Memorial Day comes ahead of the country's 76th Independence Day, beginning Monday at sunset, when Israelis celebrate the creation of their state in 1948.

Palestinians remember Israel's establishment as the "Nakba", or catastrophe, when hundreds of thousands were expelled or pushed out of their homes amid the war, and commemorate it annually on May 15.

- 'We wish for death' -

The bloodiest ever Gaza war broke out after Hamas's October 7 attack on Israel, which resulted in the deaths of more than 1,170 people, mostly civilians, according to an AFP tally based on Israeli official figures.

Militants also seized some 250 hostages, scores of whom were freed during a week-long truce in November. Israel estimates 128 captives remain in Gaza, including 36 the military says are dead.

Israel's bombardment and offensive in Gaza have killed at least 35,091 people, mostly women and children, according to the health ministry in the Hamas-run territory.

Israel's military says 272 soldiers have been killed since the start of the ground offensive in Gaza on October 27.

The war has displaced most Gazans, many multiple times.

UNRWA chief Philippe Lazzarini said on Sunday that Israel's latest evacuation orders were "forcing people in Rafah to flee anywhere and everywhere".

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Umm Mohammed Al-Mughayyir, who has had to move her family seven times to escape the fighting, said: "We have reached a point where we wish for death."

Residents were told to head to the Al-Mawasi "humanitarian zone" on the coast northwest of Rafah, though aid groups have warned it is not ready for an influx of people.

Hisham Adwan, spokesman for the Gaza crossings authority, told AFP on Sunday the Rafah border point with Egypt has remained closed since Israeli troops seized its Palestinian side last Tuesday, "preventing the entry of humanitarian aid".

The health ministry said Monday that Gaza's health system was "hours away" from collapse after fighting has blocked fuel shipments.

Israel's military said Sunday it had opened a new border crossing into northern Gaza as "part of the effort to increase aid routes".