Why ICC going after Smotrich is a bigger deal than going after Netanyahu

Without major changes in Israeli policy, the arrest warrant for Smotrich could be Israel’s darkest legal hour, with cascading consequences that cannot be predicted.

In hindsight, from the moment Israel partially lost US support in the war against the Rafah invasion in May 2024, it became inevitable that the International Criminal Court would prosecute certain Israeli officials regarding the conduct of the war with Hamas.

The ICC prosecutor’s office had threatened to do so just weeks after the start of the war, as soon as Israel launched its vast campaign of bombing and invasion of northern Gaza.

But it was not inevitable that the ICC prosecutor would attack the Israelis in connection with the settlement enterprise and Betzalel Smotrich.

All previous war crimes tribunals have focused on genocide, crimes against humanity and intentional mass murder in general.

They did not prosecute people or officials building houses, much less in the disputed territories (that is, where houses under construction could be recognized, even by the UN, as legal if the Israeli-Palestinian conflict ended in an agreed split of the West Bank).

Betzalel Smotrich has made many highly problematic statements that could be interpreted as incitement against the Palestinians.

But he does not have direct power over the IDF like Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant (the ICC has issued arrest warrants for both in 2024) or senior IDF generals had.

There is no real viable case under the ICC Rome Statute against Smotrich for the conduct of the IDF’s war in Gaza.

On the other hand, Smotrich can be held responsible for Israeli settlement policy in the West Bank.

He not only served as a minister in the Defense Ministry responsible for settlement policy, but he both directly and indirectly pushed for the creation of new settlements and outposts in the West Bank, some of which were completely legitimate, but others of which led to controversial expulsions of former Palestinian residents.

Usually the process does not involve the IDF bulldozing Palestinian residential structures, although this occurs in two main cases: this occurs occasionally in areas where the army claims the Palestinians have built new structures without permits, or in order to counter a wave of terror originating from a specific area where the IDF Central Command determines that it cannot secure the area without removing certain structures occupying adjacent high ground (a subset of this is the demolition of terrorist houses, but this is usually only one at a time and not a neighborhood).

Both of these cases can be considered problematic.

When the IDF has issued new permits to Jews in the West Bank in recent years and not to Palestinians, how can Smotrich complain when Palestinians lose patience and build illegally on barren, unoccupied land? While there may be some logic to temporarily commandeering certain residential structures to quell a temporary wave of terror, can Smotrich and some Israeli military officials really justify the total destruction of a neighborhood or a large swath of Palestinian trees and greenery as being proportional to such a temporary wave of terror?

But as problematic as some of these actions may be, they respond to a legal or security logic, which makes their criminalization very difficult.

ICC likely to persecute Smotrich for violence against settlers

Rather, the ICC’s latest case against Smotrich is likely about the unofficial space he created by allowing several hundred or more anarchists (the name the IDF gave them) to intimidate and burn Palestinian villages and agriculture in certain areas to allow some Jewish extremists to take over those areas by force, also unofficially.

Typically, this will be a weak and somewhat isolated Palestinian village or agricultural area, which some Jewish extremists will target by deliberately building a new “farm” nearby without IDF authorization.

Over time, the Jewish farmer or some of his associates will engage in a series of attacks against neighboring Palestinians.

Under the influence of Smotrich and, of course, National Security Minister Itamar Ben-Gvir, Israeli authorities have either avoided or been weakened enough to be unable to stop many of these activities (although they sometimes succeed in stopping them and some Jewish extremists).

This is an area of ​​ICC intervention where Israel could have a real problem.

ICC targets Israeli settlement companies

But again, this is not the main problem.

The main problem is that the mix of these escalating trends may have finally led the ICC to think that the entire colonization project is within its reach after nearly 25 years of leaving these battles to the purely theoretical advisory opinions of the International Court of Justice (ICJ).

The ICJ has repeatedly ruled against the Israeli settlement enterprise, but without any enforcement powers or mechanisms, since the United States has blocked any real, concrete movement on the issue at the UN Security Council.

But the ICC is not bound by the UN Security Council and has coercive powers.

In other words, seeking an arrest warrant for Smotrich could be the start of a Pandora’s box in which Jews living in the settlements would ultimately be subject to the same surveillance for their world travel and global business activities as some IDF officials.

In the past, The Jerusalem Post interviewed NGO officials who also spoke of criminalizing Israelis living inside the Green Line who provided utilities and other services to West Bank settlements.

Around 125 countries, including most Western countries, are members of the ICC.

Smotrich could be the ICC’s example of criminalizing the entire Israeli-Palestinian conflict, which would also place Jerusalem at a distinct disadvantage in future border negotiations, however far away those negotiations may seem at present.

What should Israel do about this?

First, the legal, diplomatic, and public relations battles over the IDF and the settlement enterprise may be distinct.

Israel should do everything it can to defeat the prosecution of its conduct in Gaza by filing legal challenges, making public the results of its own thousands of investigations into its soldiers, and diplomatically pressuring the ICC to find a way out of a battle in which it will achieve few results.

However, the battles surrounding the colonization enterprise will be different.

On the one hand, Israel has an advantage in that such cases have never been tried as war crimes. Furthermore, there are other similar cases, such as Turkey’s case in northern Cyprus, which the ICC has avoided prosecuting and for which Israel can claim arbitrary discrimination.

On the other hand, the solution to the problems of colonization companies is as much political and diplomatic as anything else.

While the world saw Israel as not trying to change the status quo and open to peace initiatives, the West did not support the ICC’s involvement in the settlement issue, and the ICC stayed out of it.

Trying to bring an ICC case against Smotrich over the settlements may be a considerable effort in legal terms, but he has created a global brand so problematic that it is more popular internationally than going after IDF soldiers.

Stripping it of authority in this area, regardless of whichever future government takes over (there are many strong ministries without authorities in the West Bank) would be a start.

Returning to any peace negotiations, however unrealistic and distant the concessions may be, could also improve Israel’s position on the issue.

Finally, there is no doubt that Israel must rein in the lawlessness of Jewish extremists in the West Bank, not only to block ICC intervention, but also for Jerusalem to enforce its own rule of law.

Without major changes in Israeli policy in this area, the arrest warrant for Smotrich could be Israel’s darkest legal hour, with cascading consequences that cannot yet be fully predicted.