NCF Research Officer Silvia Luthi considers how the ICC’s recent arrest warrants for Netanyahu and Gallant will unfold amidst states’ divided reactions:
ICC Court Ruling
On Thursday, 21st of November 2024, the International Criminal Court (ICC) issued arrest warrants for Israel’s Prime Minister, Benjamin Netanyahu, and former Defence Minister, Yoav Gallant. This historic move – the Court’s first time pressing charges against incumbent leaders of a democratic and Western-allied state since its founding in 2002 – stands as the ICC’s most defining action in recent years.
The Pre-Trial Chamber I declared it had reasonable grounds to believe that both individuals faced criminal liability as “co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts”. Additionally, the Chamber found Netanyahu and Gallant guilty for “the war crime of intentionally directing an attack against the civilian population” of Gaza. Such crimes were declared to be committed from at least the 8th of October 2023 until at least the 20th May 2024 – the day ICC Prosecutor Karim A.A. Khan KC filed the applications for the arrest warrants.
Incidentally, the Chamber also ordered an arrest warrant for senior Hamas leader Mr Mohammed Diab Ibrahim Al-Masri, widely recognized as ‘Deif’, despite Israel’s army reporting of his death during an air raid this July. According to the Chamber, this is because the Prosecution declared it could not accurately confirm nor deny Mr. Deif’s death, and therefore would continue collecting information. The leader was charged for “alleged crimes against humanity and war crimes committed on the territory of the State of Israel and the State of Palestine from at least 7 October 2023”.
Let’s Talk Legal
Trials will only take place if and when Israel’s ministers are arrested, in view of the Court’s inability to conduct them in absentia. Given the high unlikelihood of either individual voluntarily handing themselves in, and the ICC’s lack of an official enforcement body, the responsibility to implement such indictments lies upon the 124 signatory states to the Rome Statute – of which Israel is notably not part of. That is, these member states are required by law to arrest Netanyahu and/or Gallant, if they step foot on their territory.
The Rome Statute is the ICC’s founding treaty which grants it jurisdiction over four main crimes, relevant to the international community. These are genocide, crimes against humanity, war crimes and crimes of aggression (as defined by ICC). As per the crimes allegedly committed by Netanyahu and Gallant, the ICC claims reasonable grounds on which to legally prosecute them. On paper, this decision presents serious implications for Israel’s head of state Netanyahu, whose ability to freely move across borders and convene with other officials, is now significantly restricted and threatened by his potential arrest (See figure down below).
But to what extent are the implications of such a landmark decision actually translated into practice?
Practical Implications
To begin to explore the practical implications of the ICC’s ruling, it is first important to consider the following two factors. First, the ICC works under the principle of ‘Complementarity’, namely, it is purposed to complement – not replace – domestic criminal justice systems. Nevertheless, it pursues legal action in cases where states lack willingness or ability to prosecute those guilty of committing the aforementioned crimes. Second, and as previously mentioned, the ICC lacks an official police force, and consequently relies on the collaboration of its member states to execute such arrest warrants.
Prospects for Complementarity
In the case of Prime Minister Netanyahu, ICC Prosecutor Karim Khan emphasized that the “door to complementarity continues to remain open”. Meaning, Israel is encouraged to undertake “genuine domestic investigations and any necessary prosecution” of their respective head of state and former defence minister. However, on Wednesday 27th November, Israel notified the ICC of its objection to both arrest warrants and its “Intention to appeal to the court, along with a demand to delay the execution of the arrest warrants”. Furthermore, Israel’s Attorney General Gali Baharav-Miara declared Khan’s decision to “Contravene the basic legal idea on which the court was founded, the principle of complementarity” – since Israel’s military is carrying out its own investigations into potential legal breaches during the war in Gaza. To further emphasize her point, Miara rejected the ICC’s involvement by stating, “We don’t need outside help to clarify suspected criminal activity”.
In addition to this, the ICC is under mounting pressure from the USA – Israel’s primary supporter. Aside from the Biden administration’s public rejection of the Court’s decision, a significant number of both Republican and Democrat politicians have voiced their outrage and condemnation against the ICC. Notably, Senator Lindsey Graham, ally of incoming President Donald Trump, has urged the US government to sanction the Hague-based Court. New York Congressman and Democrat Ritchie Torres also advocated for the sanctioning of the Court “not for enforcing the law but for distorting it beyond recognition”. Additionally, Congressman Mike Waltz, Trump’s future national security adviser, even threatened the ICC, “You can expect a strong response to the antisemitic bias of the ICC [and] UN come January”.
In spite of this external pressure, on Friday 29th November, Prosecutor Khan still urged the Chamber to dismiss Israel’s appeals on the grounds that they are inadmissible. On this basis, prospects for collaboration between the ICC and Israel’s judicial authority remain slim. Additionally, the probability of Israel taking domestic legal action against Premier Netanyahu’s alleged war crimes, so long as he remains in power, is arguably low.
Prospects for Cooperation
In light of this situation, the cooperation among Rome Statute signatories is of greater importance to the ICC than ever. This is not only to help the ICC fulfil its indictments, but also, to preserve the symbolic power of the ‘liberal international order’ – which the Court itself, as a liberal institution, seeks to promote. This understanding parts from the International Relations (IR) Theory of ‘liberal Institutionalism’, defined by American political scientist G. John Ikenberry[1] as:
“A vision of order in which sovereign states—led by liberal democracies—cooperate for mutual gain and protection within a loosely rules-based global space.”
Under this theoretical framework, institutions like the ICC are intended to “facilitate cooperation by providing venues for ongoing bargaining and exchange. They reinforce norms of equality and non-discrimination, thereby giving the order more legitimacy”. Such institutions derive their power from states’ internalisation and upholding of these norms/rules, who consequently hold each other accountable if/when these are breached. Conversely, when such norms are applied inconsistently – especially by major powers – they appear to be selective and therefore lower states’ incentive to abide by its principles. Under these circumstances, the symbolic legitimacy of these institutions is weakened.
In the case of the ICC, it maintains its legitimacy when member states abide by the principles on which it was founded (principles which it regards as international criminal law), and condemn those who do not. A significant number of member states[2] have already vowed to comply with the ICC’s ruling. However, just as significantly, various member states[3] have publicly expressed their strong disapproval of the arrest warrants, and even affirmed their non-compliance. Notable examples include:
- Hungary: Prime Minister Viktor Orbán criticized the ICC’s decision on X as “brazen, cynical and completely unacceptable.” He even spoke of inviting Netanyahu “for an official visit to Hungary, where we will guarantee his freedom and safety”.
- France: The French Ministry of Foreign Affairs declared that Premier Netanyahu is immune from the ICC’s enforcement of what it asserts to be international law provided that Israel is not a signatory to the Rome Statute. It follows by stating “France intends to continue to work closely with Prime Minister Netanyahu and other Israeli authorities to achieve peace and security for all in the Middle East”.
Additional member states[4] have brought the ICC’s decision – to simultaneously indict Israel Ministers and a Hamas leader together – into question, arguing that “it is absurd to create an equivalence between members of a democratically elected government and the leader of a terrorist organisation” (Austrian Foreign Minister). Further concerns lie in the potential – but very real – obstacle this may pose for the advancement of peace talks. The Bulgarian Foreign Ministry shed light on this: “the only possible decision for establishing lasting and sustainable peace in the Middle East is by opening up a political horizon for the peace process and such arrest warrants are not conducive to that”.
Implications and Predictions: What comes Next?
On the one hand the ICC’s monumental arrest warrants for Netanyahu and Gallant stand as a symbolic testament in defence of international criminal law – under which everyone is equal, even heads of state. It sends the powerful message that the principles and norms of international law must be upheld, and those who go against it condemned, in honour of maintaining the liberal international order.
On the other hand, the Court’s decision poses significant challenges for Israel’s prime minister and former defence minister’s ability to freely travel and convene with other officials, and as a consequence, will (to an arguable extent) complicate any efforts to negotiate a cease-fire. Given the devastating humanitarian crisis in Gaza, where the death toll has already surpassed 44,000, the suspension of hostilities remains a necessity – more than just a priority.
Much remains to be considered given the divided state reactions towards the ICC’s indictment. A significant number of signatory states openly opposed the Court’s decision, and even declared they would go against it – thereby weakening the symbolic power of such a move. In practice, this also interferes with the actual fulfilment of the arrest warrants – provided that Netanyahu is able to visit those countries that reject the ICC’s verdict.
As a whole, this undermines the ICC’s authority, as well as its own legitimacy – because it demonstrates that the principles of international criminal law as interpreted by signatories of the Rome statute can be applied selectively, and those who breach it only partially punished. This is not a good look for the Court, especially considering its track record with indicting heads of state. Both of its previous arrest warrants for Russian President Vladimir Putin and former Sudanese President Omar al-Bashir – remain unfulfilled. This is despite them travelling to Rome Statute signatory states after the ordering of their arrests. Thus, the likelihood of Netanyahu and Gallant’s inheriting the status of “fugitives from the international rule of law” may arguably lie beyond the horizon.
Footnote from the Next Century Foundation’s Secretary General: In so much as the NCF has a position on this issue, it has historically mirrored that of the Bulgarian Foreign Ministry cited above: “the only possible decision for establishing lasting and sustainable peace in the Middle East is by opening up a political horizon for the peace process and such arrest warrants are not conducive to that”. We also have some concern that Yoav Gallant is included in the indictment, arguably one of the more moderate of Israel’s politicians, when there are others that are more extreme and of greater cause for concern.
[1] G. John Ikenberry, The end of liberal international order?, International Affairs, Volume 94, Issue 1, January 2018, Pages 7–23, https://doi.org/10.1093/ia/iix241
[2] List of Member States that will Comply: Belgium, Chile, Colombia, Ireland, Jordan, The Maldives, Namibia, Palestine, South Africa, Canada, Czech Republic, Denmark, Finland, Germany, Iceland, Liechtenstein, Lithuania, Luxembourg, Malta, The Netherlands, Norway, Portugal, Slovenia, Spain, Switzerland, United Kingdom
[3] Member States that expressed Non-Compliance: Austria, France, Hungary
[4] Member States criticizing joint indictment of Israeli ministers and Hamas leader: Czech Republic, United Kingdom, Italy, Romania, Austria, Hungary, Paraguay, Portugal
