On November 21, the Pre-Trial Chamber of the International Criminal Court (ICC) made public that it had issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, as well as Hamas’s military commander, Mohammed Diab Ibrahim al-Masry (widely known as Mohammed Deif). Since the warrants are issued under seal, what is known from the Pre-Trial Chamber’s announcement and general description is that although the charges are serious, they do not include genocide.
The charges against Netanyahu and Gallant include the war crimes of starvation as a method of warfare and intentional attacks against civilians and the crimes against humanity of murder, inhumane acts, and persecution. Both men are charged on the basis that, as civilian superiors to military personnel, they are responsible for intentionally “directing attacks against the civilian population of Gaza” and intentionally “depriving the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.” The charges against Deif are murder, directing attacks against civilians, torture, rape and other forms of violence, and cruel treatment as war crimes and crimes against humanity, as well as the crime against humanity of extermination. Whether Deif is still alive or not is an open question, as Israel claims to have killed him but Hamas disputes that.
The charges include starvation as a method of warfare and intentional attacks against civilians.
The long delay in issuing the warrants—the ICC Special Prosecutor Karim Khan requested them in May—reflects the extreme caution and reluctance to act against Israel that have been hallmarks of the Court’s process with regard to crimes against Palestinians. There are two likely explanations for the Court’s reluctance: the history of threats and measures against the Court and its staff, and a concern that warrants may not be respected even by States Parties to the Rome Statute, which created the ICC.
A Pattern of Caution and Delay
Netanyahu immediately expressed dismay at the issuance of warrants for his arrest and rejected the Court’s actions. He reacted to the charges by accusing the Court of anti-Semitism. The warrants were issued, he said in a statement, “by biased judges driven by anti-Semitic hatred toward Israel.” The charge that the Court is biased against Israel—on grounds of anti-Semitism or any other factor—is less than credible. To the contrary, the Court has avoided prosecuting Israel for fifteen years in the face of ongoing commission of serious internationally cognizable crimes in Gaza.
The Government of Palestine’s engagement with the ICC began in 2009 when it requested the Court to investigate crimes by the Israeli leadership during Israel’s 2008-2009 military assault on Gaza that inflicted extensive Palestinian civilian casualties. The Prosecutor’s response was that for the Court to have jurisdiction, Palestine would have to be recognized as a state for purposes of the Rome Statute. By that time, more than 100 states had recognized Palestine as a state. Yet the Court’s inquiry into Palestine’s status went on for three years, resulting in its conclusion that it was up to the United Nations or the Assembly of States Parties to decide. Later in 2012 the UN General Assembly did determine that Palestine’s status at the United Nations was that of a state. However, the Prosecutor’s Office then claimed, without reason, that Palestine became a state only from the date of the General Assembly’s vote, and therefore that Palestine’s request filed in 2009 was invalid and no investigation commencing from that time could be conducted.
Palestine tried again to initiate an ICC investigation into war crimes after Israel’s assault on Gaza in 2014. Although the Prosecutor’s Office opened a preliminary examination, accepting its jurisdiction over Palestine as commencing in 2014, another three years went by with no progress, despite Palestine’s formal referral demanding action. In 2019, the Prosecutor’s Office announced that it had found a “reasonable basis to believe” that there were war crimes violations for the killing of civilians and for Israeli settlements. Yet another two years passed while the Court entertained views pro and con on Palestine’s status and the territory over which the Court had jurisdiction. In 2021, the Court agreed with the Prosecutor that it had jurisdiction over crimes that may have been committed in Gaza and the West Bank, including East Jerusalem. In 2022, Palestine was put on hold while the Office investigated the Ukraine situation, leading to a March 2023 warrant for Russia’s President Vladimir Putin for war crimes.
The International Commission of Inquiry on the Occupied Palestinian Territory said that what Israel is doing amounts to extermination of the people of Gaza.
Only after Israel’s October 2023 assault into Gaza did the Office come back to the Palestine situation and in May 2024, the Prosecutor announced warrant requests for five individuals, including Netanyahu and Gallant. The Prosecutor’s request did not include a charge of genocide, even though the International Court of Justice (ICJ) had already concluded that Israel was plausibly committing genocide in Gaza and had ordered three provisional measures for it to stop its assault and crimes there. Netanyahu had been prime minister on and off since the time of Palestine’s original request in 2009. And there was little question that crimes defined in the Rome Statute were committed under his auspices during that entire fifteen years. Far from being biased against Israel and its leadership, the Court has been extremely solicitous of them. The Court’s delay facilitated the continuation of the commission of Rome Statute-defined crimes. Aside from the genocide orders, the ICJ has separately ordered Israel to leave Gaza entirely. And between October 2023 and the ICC’s issuance of arrest warrants in November 2024, Israel has killed, maimed, and tortured some 150,000 Palestinians in Gaza with complete impunity. In its latest UN report, the International Commission of Inquiry on the Occupied Palestinian Territory said that what Israel is doing amounts to extermination of the people of Gaza. In light of all the available evidence, if anything, the Prosecutor’s office has been coddling Israeli officialdom.
Threats Against the Court by Israel and the United States
The United States has reacted forcefully to the warrants announcement, with various members of Congress and figures expected to serve in a future Trump administration indicating that they will seek sanctions as well as other measures against the Court. President Joe Biden and members of his administration called the Court’s action ‘outrageous’ and ‘shameful’ and argued that its legitimacy and credibility were being called into question.
US government hostility to the ICC is hardly new. In 2002, President George W. Bush signed the American Servicemembers Protection Act, which contemplates measures designed to prevent American citizens or citizens of US allies from being arrested and held by the Court in the Hague. Through the entire fifteen years of Palestine’s efforts at the ICC, the United States did what it could to keep the Court from acting. The first Trump administration imposed sanctions on Court personnel in June 2020, largely in response to the ICC’s opening an investigation into war crimes committed in Afghanistan by parties including the United States. It insisted that the Court lacked jurisdiction to investigate crimes committed in Palestine. President Biden revoked the Trump executive order on sanctions against the Court. But on May 7, 2024, the US House of Representatives passed the Illegitimate Court Counteraction Act, which would require the United States to impose sanctions on a wide range of individuals connected to the ICC, including staff of the Court, advocates working in the Court, and even countries allied with the United States that are engaged with the Court. Earlier in 2024, investigative reporting revealed that Israeli intelligence agencies had engaged in a campaign of surveillance, threats, smears, and hacking against Court personnel over a period of nine years—including the issuance of direct threats against the prior prosecutor, Fetou Bensouda, and her family for her investigation into alleged crimes by Israeli principals.
US and Israeli threats against the ICC have brought strong reactions from a number of countries and from the United Nations and its human rights bodies. On May 10, 2024, more than 30 UN human rights experts issued a statement condemning threats against the Court as ‘promoting a culture of impunity.’
Implications of the Warrants and Likelihood of Their Implementation
Unlike the President of Kenya, Uhuru Kenyatta, who submitted to the Court when charged in 2014 with election-related violent crimes, Netanyahu is not likely to turn himself in. Neither is Israel’s government likely to surrender him, even when he is no longer prime minister. Although all States Parties to the Rome Statute have an obligation to arrest and surrender persons sought under warrant, Netanyahu is unlikely to expose himself to the territory of a state that might take such action. At the same time, foreign states, especially those that are party to the Rome Statute, are not likely to welcome him in their territory since his appearance would expose them to calls by their public and by other governments for his arrest. Netanyahu may become a pariah, if he is not one already.
Austria, Belgium, France, Italy, Lithuania, the Netherlands, Spain, Sweden, Switzerland, the European Union, and even Israel’s steadfast allies Canada and the United Kingdom have indicated that they intend to enforce the Court’s warrants. Many non-western countries have joined the submissions on behalf of Palestine or the cases on Israeli genocide at the ICJ. These include Bolivia, Chile, Colombia, Libya, Maldives, Mexico, Nicaragua, South Africa, and Turkey. Most, if not all, of these countries may well execute the warrants should they find either Netanyahu or Gallant present in their territory.
Under the Rome Statute, those who facilitate the crime of another are equally culpable.
Another step that countries can take to execute the warrants is to initiate a request to the International Criminal Police Organization (Interpol) to issue a notice to all member states to arrest and extradite Netanyahu and Gallant wherever they are found. Interpol is an inter-governmental organization with 196 member states—far more than the 124 States Parties to the ICC. Any Interpol member state can request that a ‘red’ notice be posted for any state to act on the warrants according to its domestic process. Interpol does not usually issue such notices for sitting heads of state, so Netanyahu may not be subject to this process until he is no longer prime minister, but it remains a viable prospect for arresting Gallant.
The warrants could also signal legal jeopardy for US officials. Under the Rome Statute, those who facilitate the crime of another are equally culpable. Providing a perpetrator with weapons and funding to carry out war crimes constitutes complicity. The United States has enabled Netanyahu’s and Gallant’s crimes by providing weaponry, including massive ‘bunker-buster’ bombs, and billions of dollars to prosecute Israel’s assault on Gaza. In announcing the warrants, the Court stressed that it issued the statement to explain the charges because the crimes are continuing. The warrant for Netanyahu may be only the beginning—although the Court has so far not mentioned the United States, Biden could be in the Court’s crosshairs for additional charges for the crimes in Gaza.
Perhaps the greatest significance of the warrants against Netanyahu and Gallant is that they create renewed pressure on the international community to stop the atrocities against the population of Gaza. The UN General Assembly, while frustrated that the UN Security Council is stymied by US veto power, has so far accomplished little. Under powers that it took for itself at the time of the Korean war, the General Assembly could organize diplomatic or financial pressure on Israel, as it did against South Africa for apartheid. It could even organize a protective force to enter Gaza and confront the Israeli Army. The General Assembly and all countries that claim to respect international law should take the warrants as an urgent call to action.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.
Featured image credit: GPO
Susan M. Akram
