High noon at the ICC: Zionism’s intractable Netanyahu problem

‘A guest on my show painted a painful and accurate image,” tweeted Howard Feldman, a South African Zionist talk-show host, on 22 November 2024. The image, he explained, had been inspired by the ruling of the International Criminal Court, which according to the caller was a step towards “placing Jews in a global ghetto”.

Feldman’s comment, of course, was a reference to the arrest warrants that had been issued by the ICC the day before — Prime Minister Benjamin Netanyahu of Israel and his former defence minister Yoav Gallant had been charged, along with the crimes against humanity of murder and persecution, with using starvation as a weapon of war in a “widespread and systematic attack against the civilian population of Gaza”.

Read more: Middle East crisis news hub

By Daily Maverick’s reckoning, almost everything of significance about the event had been packed into this one simple tweet. In his hyper-local reaction to a news item that had been termed a “legal earthquake” by the UK’s The Guardian, Feldman was mapping a fault line that was threatening to break the international rule of law.

“Jews [and] Israelis have been sent a message,” Feldman noted in closing, “stay where you are or we will hunt you down.”

Clearly, although Netanyahu and Gallant would now have to think twice about travelling to the ICC’s 124 member states, it didn’t matter that there was no sign of such a message in the court’s careful rationale. What mattered was that adherents of the Zionist ideology had felt compelled, once again, to conflate the personal predicament of Netanyahu with the destiny of the Jewish faith. As the ghettoised victims of history, Feldman was suggesting, it was absurd that Jews could be cast as the perpetrators.

And Netanyahu, needless to say, had been leading once again from the front.

“The anti-Semitic decision of the international court in The Hague is a modern Dreyfus trial,” the Israeli leader had stated in a televised address within hours of the announcement, “and it will end the same way.”

In other words, according to Netanyahu, all of the world’s Jews were being scapegoated through him — as had happened with Alfred Dreyfus, he predicted, the French-Jewish army officer who had been convicted of treason in 1894, evidence of the libel would eventually emerge.

As always, from the jaws of what might have portended his shameful defeat, Netanyahu had snatched the opportunity to further consolidate his power. In Israel itself, political leaders from across the spectrum were instantly united in their condemnation of the ICC’s “anti-Semitic” and “outrageous” ruling.

Read more: ICC arrest warrants for Netanyahu and Hamas leader a landmark step towards international accountability

Across the pro-Israel Jewish diaspora, meanwhile, the same instruction had been heeded on the clock. Feldman, it turned out, was merely echoing the sentiment of the South African Zionist Federation.

“The widespread campaign against the Jewish people’s right to exist continues to play out in plain sight,” noted SAZF spokesperson Rolene Marks on 21 November. “History will look very unkindly upon those who fail to stand up for a people that have suffered violent and bloody persecution since the beginning of humankind.”

The hyperbole, if anything, was a sign of her organisation’s desperation. But Marks had also laid down the more substantive challenge of Israel and the Zionist diaspora to the ruling of the international court.

Israel, asserted the SAZF, was not a signatory to the Rome Statute and therefore fell outside the ICC’s jurisdiction. Moreover, according to the SAZF, the warrants were in breach of the country’s sovereign right to self-defence, which had been enshrined in article 51 of the United Nations charter.

Here, the explicit reference was to the Hamas attack of 7 October 2023. In acknowledging that a third arrest warrant had been issued to Mohammed Deif, one of the masterminds behind the brutal assault, the SAZF predictably rejected the ICC’s “false moral equivalence” between the Israeli military and Hamas. But, in noting that Deif was “already dead” and therefore unable to “answer for his heinous crimes”, the organisation may have stepped into a logical abyss.

Did this mean that Netanyahu and Gallant, who clearly weren’t dead, would have to answer for their heinous crimes?

If the answer was that it meant no such thing — because of the ICC’s lack of jurisdiction or the contents of article 51 — there were a set of hard facts with which experts in international law were intimately familiar.

One of these experts was Howard Varney, a Jewish South African human rights lawyer and senior programme adviser at the International Centre for Transitional Justice, who spoke to Daily Maverick on the morning of 23 November.

“Besides Israel and the United States, nobody is seriously suggesting that the ICC doesn’t have jurisdiction,” he informed us. “For those who don’t know, the State of Palestine is recognised by the UN General Assembly. Back in early 2015, [Palestine] lodged a declaration accepting the jurisdiction of the court.”

The actions of Israel in Palestinian territory, Varney added, had initially been referred to the ICC in May of 2018.

“The office of the prosecutor has been seized with the situation since then,” he said. “In February of 2021, in fact, the [ICC’s pre-trial chamber] decided that they could exercise their territorial jurisdiction, because their scope extends to Gaza, the West Bank and East Jerusalem.”      

And what about article 51 of the UN charter, we asked, the right of Israel to defend itself against attack?

“If it ever got to trial,” Varney said drily, “[Netanyahu and Gallant] would no doubt claim that they were acting in self-defence.”

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Moral degradation