By Catherine Gegout
The International Criminal Court (ICC) has issued arrest warrants for Israeli prime minister, Benjamin Netanyahu, his former defence minister, Yoav Gallant, and Hamas leader, Mohammed Deif. The court claims both sides have committed crimes against humanity and war crimes from the day Hamas attacked Israel on October 7 onwards.
Although a warrant was issued for Deif, Israel has said he was killed in an air strike in July. But Hamas has neither confirmed nor denied this claim. If they were ever to be judged at the ICC, a conviction is conceivable.
The charges of the court against Netanyahu are severe. The three-judge panel unanimously said that he and Gallant are “co-perpetrators for committing the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution, and other inhumane acts”.
The judges also “found reasonable grounds to believe that they bear criminal responsibility” … “for the war crime of intentionally directing an attack against the civilian population”. The charges are also backed by the work of the International Court of Justice, which has found that it is “plausible” that Israel has committed acts in Gaza that violate the Genocide Convention.
If arrested, Netanyahu would go through a trial, and he could then be acquitted, or convicted. In the latter case, Netanyahu would join the ranks of leaders considered perpetrators of crimes against humanity, such as Charles Taylor of Liberia, Hissène Habré of Chad, Saddam Hussein of Iraq, Augusto Pinochet of Chile, Slobodan Milosevic of Serbia, Radovan Karadžić of Serbia, Idi Amin of Uganda, Pol Pot of Cambodia, Joseph Stalin of the former Soviet Union, Mao Zedong of China, and Adolf Hitler of Germany.
The arrest warrants rely on ICC member states carrying them out. And this is by no means a foregone conclusion. Russia’s president, Vladimir Putin, has been wanted by the court since 2023 for his role in directing attacks at civilians in Ukraine and illegal deportation of Ukrainian children.
But Putin was not arrested on a recent visit to Mongolia, a state that is party to the ICC, after the Mongolian authorities had assured him he would be safe. That said, he was unable to travel to South Africa when leaders from the Brics economic bloc of Brazil, Russia, India, China and South Africa met in Johannesburg in 2023.
This was due to the experience in South Africa of former Sudanese president, Omar Al-Bashir. Bashir, for whom the ICC granted arrest warrants in 2009 and 2010 for allegedly directing a campaign of mass killing, rape and pillage against civilians in Darfur, travelled to South Africa in 2015 to attend an African Union summit. But he had to leave abruptly for fear of arrest.
South Africa’s Supreme Court of Appeal ruled in 2016 that the government’s failure to arrest him was unlawful. And the ICC ruled against South Africa on its “shameful failure” to arrest Bashir the following year. He was also able to travel freely to other ICC member states, including Chad, Kenya and Jordan.
Bashir was overthrown in a military coup in 2019 and placed under arrest. He is now persona non grata in Sudan where he was convicted of corruption, sentenced to two years in prison, and is being investigated for his role in the coup that brought him to power.
Not arresting criminals inflicts damage on the ICC, which already has a weak record of prosecutions. For example, after former president of Ivory Coast, Laurent Gbagb, was charged then acquitted. But it also takes away a major opportunity to achieve justice for victims of serious crimes.
Dramatic political implications
The likelihood of Netanyahu, who has become the first ever leader of a western country to be charged by the ICC, appearing at the Hague is low. But the political implications of the arrest warrants for Netanyahu are, at any rate, dramatic.
Netanyahu knew the ICC would be able to hold him to account for his political decisions, and this is exactly why he disapproved of Palestine joining the ICC in 2015.
In practice, Netanyahu might lose even more legitimacy in his own country than he has done already with some groups. Civil society groups in Israel are following the work of the ICC very closely.
B’Tselem, a Jerusalem-based non-profit organisation that documents human rights violations in the occupied Palestinian territories, has said that the ICC intervention and ICJ rulings “are a chance for us, Israelis, to realise that … upholding a regime of supremacy, violence and oppression necessarily involves crimes and severe violation of human rights”.
Netanyahu will also be limited in his travels, and viewed as a pariah in many of the 124 states that are party to the ICC. This is a view that would be shared by most leaders of European states, including Germany. In May, a spokesperson for the German government hinted that Germany would arrest Netanyahu should warrants be issued.
The EU is, for the moment, unlikely to be able to use its global human rights’ sanctions regime against Netanyahu, which allows targeted measures against foreign nationals who are deemed responsible for gross violations of human rights. This is because unanimity across the bloc is necessary, and some states such as Austria, Czechia, Hungary and Germany could be reluctant to agree to this. Even the French foreign ministry spokesperson said: “It’s a point that is legally complex.” But the EU is a strong supporter of the ICC, so there will be pressure in governments of all EU states to act against Netanyahu.
The political implications of this decision are not isolated to Netanyahu. Pro-Palestinian protest activity has taken place at over 500 US colleges since October 7. And the UK has now joined most EU states in supporting Netanyahu’s arrest.
The US is now very much isolated among western countries in its lack of support for international law. The ICC, on the other hand, is becoming increasingly visible in its quest for international justice for victims.
This article authored by Catherine Gegout, Associate Professor in International Relations, University of Nottingham, has been used here courtesy of The Conversation
