Israeli Judicial Failure and 124 Countries That Have Become Off Limits for Netanyahu

Instead of completely ignoring the International Criminal Court as Putin did, on the one hand, Israeli jurists did not recognize it, but on the other hand cooperated with it. The result: arrest warrants against Netanyahu and Gallant and a black stain on the state of Israel. Netanyahu and Gallant cannot fly to most European, African and South American countries unless they convince them not to carry out the warrant. Legal sources: The decision strengthens the need for an independent external legal inspection mechanism for the government.

The issuing of arrest warrants against Prime Minister Benjamin Netanyahu and dismissed Defense Minister Yoav Gallant is, among other things, a reverberating echo of the failure of Israeli jurists and the government’s legal advisory apparatus.

The jurists took a mixed approach — on the one hand, they did not recognize the International Criminal Court at the Hague, and, on the other hand, they cooperated with the court in a substandard manner. In terms of the court’s authority, they claimed that Israel did not receive an announcement of the opening of the investigation and sought information about the new judge in the court’s composition.

Israel should have acted as Russian President Vladimir Putin did, completely ignoring the ICC. Putin did not make any claim and, in the end, an arrest warrant was issued. Israel tried to be smart, and this completely failed.

The immediate significance of the arrest warrants is that Netanyahu and Gallant are imprisoned in Israel. They cannot leave the country and of course cannot travel to any of the 124 countries that are members of the ICC. This includes most European, African and South American countries. Netanyahu and Gallant can perhaps visit one of these countries, but only if they succeed in convincing it not to implement the arrest warrant. In fact, the significance of the issuing of the warrants is that Netanyahu has become a “pariah” leader.

The first country to announce that it is implementing the warrant is Holland, whose foreign minister was quoted by the local ANP news agency as saying: “Holland is ready to act on the arrest warrant against Netanyahu.” Following this, the French Foreign Ministry announced, “the French response to the arrest warrant will be in accord with the principles of the International Criminal Court.” The Foreign Ministry of Jordan also announced, “The decision must be respected and implemented because the Palestinians are deserving of justice.”

Irish Prime Minister Simon Harris also declared that his country would respect the warrant: “Everyone who can assist the Criminal Court carry out its vital work must do so with urgency.” According to Harris, “The warrants of the International Criminal Court cannot be more serious,” and he added that the step against Netanyahu and Gallant is “quite significant.” The EU foreign minister addressed the issue of the warrants, saying: “The arrest warrants against Netanyahu and Gallant are not political. The decision by the Criminal Court must be respected and applied.”

With that, there have been exceptions. On Sept. 2, Mongolia hosted President Putin and ignored the arrest warrant, despite being a member of the ICC. Because of that action, Mongolia was required to give an accounting to the ICC council on why it did not honor the warrant.

Netanyahu will not have any problems flying to the United States because it is not a member of the ICC. However, problems could arise with the flight route as some countries might not allow the “Zion Air” aircraft to fly through their airspace. This would mean that Netanyahu would have to zigzag to create a flight path to reach the United States.

Netanyahu and Gallant cannot appeal the arrest warrants issued against them primarily because the warrants are secret. There has not been a case in which someone against whom an arrest warrant was issued submitted an appeal. Netanyahu and Gallant may request a copy of the decision and then perhaps may try to argue against it, but this would be an exceptional and unacceptable process.

The judges’ decision to issue arrest warrants against Prime Minister Netanyahu and Gallant, despite the sanctions and threats being heard from the incoming Trump administration and members of Congress in the United States, testifies to the determination and lack of restraint toward international pressure. According to estimates, the French judge in the pretrial judicial grouping received the full backing of the Emmanuel Macron government when looking at the possibility of Netanyahu going to France.

Can Netanyahu speak at the U.N. General Assembly with an arrest warrant against him? This would not be simple. It is possible the U.N. would not allow him to speak. There is a convention at the U.N. that a leader with an arrest warrant is not invited to speak, but there is no such rule.

Can Netanyahu negate the warrant? He can argue against the issuing of the arrest warrant and seek to change it from an arrest warrant to an order to appear; however, this currently depends on agreement by the judges.

Gallant’s situation in this context is much better because concern over a continuation of criminal offenses does not exist as he no longer serves as defense minister.

In the history of the ICC, there have been instances when it did not implement the request to issue arrest warrants, but there has never been an instance when the ICC negated arrest warrants that had already been issued. This is, without a doubt, a black mark on the state of Israel and on its leader. The warrants against Netanyahu and Gallant are for a lifetime and in perpetuity, even after they complete their service.

The ICC at the Hague will disseminate warrants to all 124 of its members and also via Interpol (the international criminal police organization) so that, theoretically, countries which are not members of the ICC can implement the warrants. In this case, apparently dozens of other countries could act according to the warrants. Starting now, every trip by Netanyahu and Gallant outside the country means they are in danger of arrest and being extradited to the Hague.

In the meantime, legal sources have said that the decision at the Hague strengthens the need for an independent, external legal inspection mechanism for the government where the prime minister, currently with an arrest warrant against him, cannot intervene in its composition.

It should be pointed out that Israeli Attorney General Gali Baharav Miara in the past sent a letter to the prime minister saying that “a governmental investigative council is the means to deal with and to defend against the severe and immediate dangers to the country in the international arena. These arguments also are becoming stronger because the government will soon have to deal with this.” As is known, Netanyahu rejected the attorney general’s counsel and he is seeking, for political reasons, to set up a government committee of inquiry.