Israel could have prevented the issuance of arrest warrants by the International Criminal Court if it had worried about providing humanitarian aid to civilians in Gaza from the beginning of the war, Attorney Yuval Kaplinsky, former director of the international department at the State Attorney's Office, explained to 103FM on Monday.
"Israel woke up to the humanitarian issue late. There was no operative plan on October 7 that said, 'we are going to attack Gaza, but we need to understand that hunger, the death of innocent Palestinians in the Gaza Strip, will ultimately harm the overall calculation of Israeli national security, and that is why we are formulating a plan.' Just as when we attack the enemy home front, they take care to provide aid to our forces, so when they attack in Gaza, they take care to provide aid to the civilian population."
"If there had been a concern for this from day one, we might not be facing warrants today, but Israel woke up very late following what happened at the ICJ and following the American criticism. So Israel woke up and began to take care of the Gaza Strip in a humanitarian way. When you wake up late, sometimes the early results come before you."
When asked if there is a legal avenue through which Israel can act to prevent the move, Kaplinsky replied: "I don't think that anything can be done at the moment because between the prosecutor's application to the court and the court's decision - there is no opportunity for a hearing."
Later, Kaplinsky explained what the structure of the ICC actually is in terms of its defense attorney and defense: "There is a defense attorney, but as in Israeli law, if there is an investigation and the police turn to the court to issue arrest warrants, at this stage, the potential detainee does not have the right to a hearing. Here too, the warrants will be issued and then if someone is arrested and handed over to the court, then a legal proceeding will take place there."
Kaplinsky explains what will happen next: "If warrants are issued, regarding the Israeli side, it will certainly have a significance, even a dramatic one. Because all the countries that are parties to the Rome Convention, which established the International Criminal Court, all of these countries are obliged according to the agreement, to hand over those who are wanted by the court in The Hague."
"There are several countries that joined the Rome Statute but later made a commitment to the US, which is not a member of the Rome Statute and the court, that if someone from the US or one of its allies passes through them, they, despite their membership in the Rome Statute, are obligated to the US not to extradite that American or that ally of the US to The Hague. But these countries are not the countries that I think are important to the prime minister and the defense minister. These are not countries in Western Europe - not England, Germany, France, but countries in Africa and the Americas, so the meaning is dramatic. That means that many countries, significant in the world, currently according to international law, are actually obliged to extradite to The Hague those people against whom arrest warrants have been issued," added Kaplinsky.
Israel, Hamas officials unlikely to risk arrest
"I assume that nothing will happen because the Hamas side probably won't leave Gaza, or won't travel around the world enough, and the Israeli side will also be careful and then there won't be actual arrests and there might not even be legal proceedings. What does the future hold? It's hard to know. If you were to ask me , will these decrees be valid forever or is there a chance that one day someone will act to freeze them or cancel them, then we are already in another field of rosy dreams. I see such a future only if there is some kind of political process that guarantees that then the same political pressures, which are now working in the direction against Israel - perhaps in the rosy dreams of peace seekers - will act in the opposite direction and tell the court, the arrest warrants you issued at the moment are disrupting peace proceedings."
ICC prosecutor believes there's enough evidence to issue arrest warrants
Kaplinsky additionally explained that "[ICC Chief Prosecutor Karim] Khan announced that he intends to ask the court to issue warrants, this means that he believes there is evidence of crimes, according to the Rome Statue, and I assume that the court will grant his requests. He requested, as I understand it, three warrants against the Hamas side - Sinwar, Deif, and Haniyeh, and two warrants against the Israeli side - Netanyahu and Gallant."
"I assume that the court will agree, because the prosecutor must be careful with this matter and if he finds it appropriate to go to the court, then he believes that there is enough evidence. I must point out, however, in the interview I watched, he spoke of the orders against Hamas as definite orders, and precisely when he spoke about the Israeli side, he warned and said, 'Everything depends on whether the court approves or not,'" noted Kaplinsky.
"I don't know why he expressed himself differently towards the two sides. He also expressed much more emotion towards the injustices of Hamas. Apparently, after all, he does not see the matter symmetrically, but there are degrees of severity, and yet he found that the Israeli side, according to the evidence he gathered, violated the laws of war in a way that justifies the orders."
Khan seemed resigned about Israeli arrest warrants
Kaplinsky noted that "If you watch the interview that Khan gave on CNN, you will see that when he spoke about the side of Hamas, he spoke from the heart, including about the events of October 7, and the people who were kidnapped from their homes and how terrible these crimes are."
"When he moved on to speak at the end, as if he had no choice on the Israeli side, he spoke as if he had swallowed a lemon and then pointed out the suspicions against the Israeli side and clarified that it depends on the court. He said that the Israeli side is suspected of attacking civilian targets and starving the Gaza population. What brought him to this? His evidence file should be checked."