Israel could stop ICC case against Netanyahu by launching their own war crimes investigation against him

When the International Criminal Court announced last week that it had issued arrest warrants for Benjamin Netanyahu and his former Defence Minister Yoav Gallant, the prime minister reacted furiously.

"It's an antisemitic step that has one goal,” Netanyahu said. “To deter me, to deter us, from having our natural right to defend ourselves against enemies who try to destroy us."

Jerusalem could block the prosecution, however, were it to open its own investigation into Netanyahu and Gallant’s conduct, the court’s spokesperson has said.

Speaking to UN News, Fadi El Abdullah said: “It's possible either for the concerned state or for the concerned suspect to seek from the ICC to stop the proceedings against him or her but that has to be based on evidence that there are genuine serious prosecutions, at the national level, for the same alleged conduct.”

The Rome Statute, which established the ICC in 2002, states that the court should be complementary to national criminal jurisdictions. 

Any case is inadmissible to the court if it is being investigated or prosecuted by the state which has jurisdiction over it, unless that country is unwilling or unable to do so.

The ICC will also not consider cases that have already been investigated by a nation that has decided not to prosecute the accused, "unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute.”

Israel, along with the United States, is not a member of the ICC, however.

The case against its leaders has been able to proceed because the Palestinians were allowed to sign up to the Rome Statute in 2015 after their delegation was admitted to the United Nations as an observer state.

The international court is seeking to try Netanyahu and Gallant over claims that they deliberately blocked humanitarian aid and medical supplies from entering Gaza, that they used starvation as a method of warfare, and that they targeted Palestinians on the grounds of their identity.

The case marks the first time the ICC has issued warrants for the leader of a nation allied to America.

All ICC member states are now obliged to arrest Netanyahu and Gallant if they enter their territory.

Sir Keir Starmer's official spokesman has refused to rule out that Netanyahu would be detained if he were to come to Britain.

In a statement last week, a government spokesperson said: “We respect the independence of the International Criminal Court which is the primary international institution for investigating and prosecuting the most serious crimes of international concern.

“This government has been clear that Israel has a right to defend itself, in accordance with international law. There is no moral equivalence between Israel, a democracy, and Hamas and Lebanese Hezbollah, which are terrorist organisations.”

In Israel, much of the reaction to the court’s decision has been apoplectic. 

Writing on X after the arrest warrants were released, Netanyahu said it was "a dark day in the history of humanity".

"The international court in The Hague which was invented in order to protect humanity has become today the enemy of humanity,” he said.

Gallant said: "Gone are the days when we could be denied the right to defend ourselves. The attempt to deny Israel its right to achieve its goals in its just war will fail."

Israeli President Isaac Herzog added: "The decision chose the side of terrorism and evil over democracy and freedom and turned the international justice system itself into a human shield for Hamas's crimes against humanity."

The Palestinian Authority welcomed the decision, by comparison, and urged members of the court to implement it.

Human Rights Watch, an NGO previously accused of anti-Israel bias, said the arrest warrants, “break through the perception that certain individuals are beyond the reach of the law.

"This is all the more important given the brazen attempts to obstruct the course of justice at the court."