Israel advised state inquiry into war may help in ICC arrest warrant case — report

Two British attorneys, experts in criminal law, reportedly met Israeli officials about setting up independent commission into alleged war crimes

File: An exterior view of the International Criminal Court in The Hague, Netherlands, December 6, 2022. (AP Photo/Peter Dejong)
File: An exterior view of the International Criminal Court in The Hague, Netherlands, December 6, 2022. (AP Photo/Peter Dejong)

Israel has been advised that establishing a state commission of inquiry into alleged war crimes committed by the military during the ongoing war against terror group Hamas in Gaza would help prevent the International Criminal Court from issuing arrest warrants against Israeli leaders, Kan news reported Wednesday.

Two British attorneys, described as experts on criminal law with a background at the ICC, were recently in Jerusalem for consultations, and told Israeli officials an inquiry commission would “assist in the legal battle” against warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, the report said.

The court’s Chief Prosecutor Karim Khan said in May that he was seeking arrest warrants for Netanyahu and Gallant for possible war crimes in Gaza.

The two attorneys, who were not identified in the report, met with senior Israeli officials, including members of the inter-ministerial team set up to handle Israel’s legal campaign at the ICC, which sits in The Hague, in the Netherlands.

State commissions of inquiry are typically headed by a retired Supreme Court justice, appointed by the court president. As such, they are seen by international agencies as an indication of an independent justice system able to probe allegations against a country, circumventing the need for external intervention.

While there has been public discourse on the need to set up such a commission to investigate events leading up to October 7 and Israel’s failure to prevent the attack, there has been less talk of a panel probing the conduct of the war itself and alleged Israeli wrongdoing.

Kan also reported that incoming British Foreign Minister David Lammy, a member of the new cabinet formed following the Labour Party victory in elections last week, is expected to arrive in Israel next week.

The new Labour government is expected to drop a challenge to the ICC by the previous government over the potential Netanyahu and Gallant arrest warrants, the UK’s Guardian newspaper reported earlier this week.

Incoming Secretary of State for Foreign, Commonwealth and Development Affairs David Lammy arrives at Downing Street in London, July 5, 2024. (Thomas Krych/AP)

In June, Attorney General Gali Baharav-Miara reportedly urged Netanyahu to launch a state commission of inquiry into the government’s handling of the Israel-Hamas war, explaining that the probe is essential in fending off the actions being taken against Jerusalem at international tribunals.

“Given the urgency of dealing with the threats on the international stage, our professional opinion is that there should be no delay in establishing a state commission of inquiry investigating the events of the war,” Baharav-Miara wrote in the letter reported at the time by the Walla outlet.

Government Secretary Yossi Fuchs responded to Baharav-Miara that such a proposal has not yet been presented to ministers.

The government, led by Netanyahu, has pushed back against establishing a state commission of inquiry while the fighting is still ongoing, and in particular, against any probe of the failures that led up to October 7.

Prime Minister Benjamin Netanyahu (left) delivers a recorded statement on the war with Hamas in Gaza (Screenshot/GPO); Defense Minister Yoav Gallant delivers a statement to the press, May 15, 2024. (Screenshot)

The threat of arrest warrants against Israeli leaders has reportedly rattled Jerusalem.

Netanyahu considered, then decided against, visiting the Czech Republic and Hungary on his way to the United States when he travels to address Congress on July 24, Kan reported, amid fears the ICC was readying an arrest warrant against him.

If the International Criminal Court accepts its chief prosecutor’s request for an arrest warrant, the Czech Republic and Hungary must arrest Netanyahu. Both countries have called the request “unacceptable.”

Instead of the stopovers, the prime minister will travel directly to Washington, DC, the report said.

The official ‘Wing of Zion’ state airplane is seen at Ben Gurion Airport on October 20, 2020. (Olivier Fitoussi/Flash90)

The ICC prosecutor’s decision to request arrest warrants was fiercely criticized by Israel, the US, and others, arguing among other claims that Israel’s independent judiciary and legal system were capable of investigating any criminal wrongdoing during the war and that the prosecutor had not allowed enough time for Israel to exercise that power.

Critics also argued that Khan had not engaged with Israel to understand what steps it might have taken or was currently carrying out to investigate any possible criminal actions during the war, unlike his attitude in other investigations, such as against Caracas, where he has engaged with the dictatorial regime of Nicolas Maduro.

Khan said at the time he was also seeking arrest warrants for Hamas leaders Ismail Haniyeh, Yahya Sinwar, and Mohammed Deif.

International Criminal Court Prosecutor Karim Khan at the Cour d’Honneur of the Palais Royal in Paris on February 7, 2024. (Dimitar Dilkoff/AFP)

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