ICC’s milestone bid for Netanyahu arrest warrant will have wide political impact even if he evades the court – Report

*Netanyahu could be ostracised

By CATHERINE GEGOUT, University of Nottingham
(Published by The Conversation on May 21, 2024)

Netanyahu expressed his disagreement when Palestine joined the ICC in 2015. But international criminal justice will now operate in the name of his victims.

The chief prosecutor of the International Criminal Court (ICC), Karim Khan, is seeking arrest warrants for top Israeli and Hamas officials. Khan says he has “reasonable grounds to believe” the individuals bear responsibility for war crimes and crimes against humanity.

He has requested arrest warrants for Israeli prime minister Benjamin Netanyahu and defence minister Yoav Gallant, as well as the Hamas leader in Gaza, Yahya Sinwar, the head of its military wing, Mohammed al-Masri (known as Mohammed Deif), and the head of its political bureau, Ismail Haniyeh.

The ICC has long been criticised for an inability to challenge power inequalities and address structural injustices, for bias against African leaders, and for having cumbersome procedures. It has also been slammed for ineffective prosecutions against high-level alleged perpetrators.

Khan’s decision, however, marks a milestone in its mission. The prosecutions for crimes in Israel and Gaza signal the end of power politics, or “realpolitik”, where leaders have all too willingly used their power and alliances with disregard for ethical concerns.

Respect for international law drives the ICC. It has the capacity to investigate crimes committed in all 124 party states, as well as in other states when alleged atrocities are referred by the UN security council. Powerful states such as the US, Russia and China, which have not signed the ICC treaty, have no influence on the ICC’s prosecutor.

The irrelevance of the US was made clear in April 2024, when 12 Republican senators sent a letter to the ICC threatening to bar the prosecutor and his family from the US in case an arrest warrant were issued against Netanyahu. The ICC responded that threats to retaliate against officials of the Court is prohibited under article 70 of the ICC statute.

Then, on May 20, the US government called the ICC prosecutor’s request for arrest warrants for the two Israeli leaders “outrageous”. Even if the US decides to sanction the ICC prosecutor, as it did in 2020 when it did not want the ICC to investigate the actions of US citizens in Afghanistan and the role of Israeli officials in Palestine since 2015, this will have no effect on the Court’s process.

Russia also has no power over the ICC. Despite Russia not being an ICC member, the court has issued an arrest warrant for the Russian president, Vladimir Putin, for the forced deportation of Ukrainian children from areas occupied by the Russian military. It was able to do so due to the fact that Ukraine accepted the jurisdiction of the ICC over war crimes committed in its territory in 2013.

The UK government, which has faced much criticism in recent years for failing to respect international law, said on Khan’s charges that “we do not think the ICC has jurisdiction”. This view is opposed by numerous experts in international law.

Khan says that the charges against Netanyahu and Gallant include extermination, causing starvation as a method of war, and deliberately targeting civilians in conflict. What is the likelihood that Netanyahu will be held to account for the crimes he is accused of committing?

The ICC has only charged one head of state before. In 2011, the Ivory Coast’s Laurent Gbagbo was put on trial in connection with violence following a disputed election the previous year that left 3,000 people dead. He denied all of the allegations and was eventually acquitted in 2019.

However, several other cases show that charging a head of state is a strong possibility. Also in 2011, the ICC issued an arrest warrant for the former leader of Libya, Muammar Gaddafi, only for the case to be terminated following his death.

And arrest warrants were issued for the former Sudanese president, Omar al-Bashir, in 2009 and 2010. This case is ongoing, and the government in Sudan had said it would hand Bashir over to the ICC. But the war there means that Bashir is currently detained in a Sudanese prison.

Investigations and charges take time. But the ICC is now acting against potential criminals, and it is acting fast. It only took four weeks for the pre-trial chamber to issue an arrest warrant for Putin in 2023.

If an arrest warrant is issued against Netanyahu, it will mean he can no longer travel to the 124 states that are party to the ICC and wish to abide by their commitments to international law. If he does, he could be arrested and sent to the ICC in The Hague where he would then face trial. Netanyahu’s trial could also occur in Israel if a future government is willing to abide by international law.

While it is unlikely that Netanyahu will end up at the ICC, it is not impossible. But, regardless, the ICC’s decision has wide political implications.

Netanyahu is being criticised by some within Israel for becoming a criminal and the first ever leader of a western-aligned country to be charged by the ICC. Some analysts say he has been “given a label he will never be able to shake”.

The ICC case is also running in parallel to South Africa’s case on a possible genocide in Gaza at the International Court of Justice (ICJ), which settles legal disputes submitted to it by states. Given that South Africa has asked the ICJ to order a ceasefire to halt the assault by Israel on Rafah, the ICC decision might influence that of the ICJ.

Netanyahu expressed his disagreement when Palestine joined the ICC in 2015. But international criminal justice will now operate in the name of his victims.