Israel’s New Battlefield: Preventing the Arrest of IDF Soldiers Around the World

“The International Criminal Court has set a legal precedent that can be applied to any IDF soldier, former soldier or reservist (which includes most citizens of Israel) as well as to US soldiers and civilian leadership.”

I wrote those words almost three months ago in an article about the arrest warrants issued against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant.

Only weeks later later, this dire prediction is already coming true, with young Israelis urgently fleeing from their vacations to avoid arrest, prosecution, and possible imprisonment — merely for having served in the IDF. Here are the legal mechanisms at play, how to understand what’s happening, and what you can do about it.

The Hind Rajab Foundation, an organization started and led by Dyab Abou Jahjah, a (supposedly former) member of the internationally designated Hezbollah terror organization, claims to have filed arrest requests for 1,000 dual-nationality IDF soldiers across eight countries. The foundation conducts its activities by taking advantage of a legal mechanism called “universal jurisdiction.”

Typically, a country can enforce only its own laws, and only with respect to activities that occur within its own borders. However, some countries have “given themselves” authority to prosecute certain offenses regardless of where they were allegedly committed.

For example, Brazil, South Africa, Ecuador, the Netherlands, France, Argentina, Chile, Sri Lanka, Thailand, Belgium, Serbia, Ireland, and Cyprus, are all considering requests by the Hind Rajab Foundation to arrest visiting or dual-national Israelis, and to prosecute them locally for war crimes allegedly committed in Gaza.

While Israel says that foreign courts have not yet issued actual arrest warrants, numerous Israelis have already had to flee from their vacations after receiving urgent warnings from Israeli intelligence — most recently from Brazil, where an investigation is ongoing against IDF soldier and Nova massacre survivor Yuval Vagdani, as well as an (unnamed) IDF reservist who recently fled from Cyprus.

Strictly speaking, universal jurisdiction violates international law. Under the modern international system, a country must sign a treaty or otherwise agree to an international code of conduct before being subject to its rules. The various treaties that govern international law also establish international courts and tribunals to enforce their rules, which means a country must agree (via the relevant treaty) to be subject to that court’s jurisdiction.

For example, the Rome Statute (to which Israel and the United States are not a party) established the International Criminal Court, while the Convention on the Prevention and Punishment of the Crime of Genocide (to which Israel is a party) established the International Court of Justice. (For a discussion of how the ICC “gave itself” jurisdiction over Israel in violation of its own rules, see our previous article.)

By contrast, Israel never agreed to be bound by the laws of (for example) Brazil, nor by Brazilian courts or its judges.

On the one hand, the international system respects local authority, which means that if an Israeli tourist commits a crime in Brazil, then Brazilian laws and courts will legitimately apply. However, to arrest an Israeli in Brazil on the basis of his or her IDF service, surpasses the bounds of Brazilian authority. Nonetheless, there is a difference between law and reality: if Brazil were to arrest an Israeli tourist, law would become essentially irrelevant, as Israel would be limited to either bringing diplomatic pressure or going to war.

South Africa has gone one step further: criminalizing IDF service by any South African citizen. This means that even without a trial over war crimes, merely serving in the IDF, in any capacity, could result in arrest and prosecution by South African authorities.

While the ICC’s arrest warrants against Netanyahu and Gallant do not explicitly authorize the arrest of IDF soldiers, the case has had a psychological impact on countries worldwide — creating a sort of assumption that Israel “must be” actually engaged in war crimes, and thus giving national leaders encouragement to exercise universal jurisdiction against Israelis.

Legal procedure aside, Israel is quite simply not engaged in war crimes.

Israel’s operations in Gaza have produced among the lowest civilian to combatant casualty ratios in human history (even according to Hamas’ exaggerated and unreliable figures), approximately nine times less than the UN published global average: thanks in great part to Israel’s incredibly strict rules of engagement.

A recent New York Times article criticizes Israel for “loosening” its rules of engagement in Gaza, specifically claiming that Israel expanded the number of civilians who may be endangered in any given strike. What the NYT hid from its readers, however, is that neither international law, nor most countries, set any such limits at all.

The Geneva Conventions prohibit intentionally targeting civilians, and require that any harm to civilians be proportional to the military objective sought. However, the Geneva Conventions (and most countries) do not set any specific limit on how many civilians may be at risk in any given operation.

In other words, Israel has gone from vastly exceeding the requirements of international law (as well as the limits followed by most other countries) to … still vastly exceeding both. The result has been Israel’s record-breakingly low civilian to combatant casualty ratio.

In short, what we are seeing in both domestic and international courts is not law, but lawfare: the manipulation of legal institutions to conduct warfare, off the battlefield.

IDF soldiers should be careful about what they post on social media, including both activities in uniform as well as travel plans, because anti-Israel and anti-Jewish organizations are using this data to carry out their lawfare-based attacks. Soldiers should also be careful about where they travel on vacation and should stay in regular contact with the relevant Israeli consulate or embassy.

As for the rest of us, it is critical that we contact our elected representatives and speak in our communities. Because lawfare isn’t truly legal in nature, it will not be resolved by a legal process. Only the power of international diplomacy, and Israel’s friends and allies around the world, will win this next of Israel’s many, many recent battles in the multi-front war for our very survival — as a country and as a people.

Daniel Pomerantz is the CEO of RealityCheck, an organization dedicated to deepening public conversation through robust research studies and public speaking.

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