Can the ICC survive its arrest warrant for Netanyahu?

Maureen Clare Murphy Rights and Accountability 27 November 2024

Protesters demand accountability for Israel’s crimes against the Palestinian people during a march in Piccadilly Circus, London, in August 2024.
Vuk Valcic SOPA Images

The world’s court of last resort has not failed the Palestine litmus test after all – at least for now.

But will the International Criminal Court survive the indictment and – if member states fulfill their obligation to carry out arrest warrants – prosecution of Israeli leaders?

The ICC made history last week by issuing arrest warrants for Benjamin Netanyahu, the Israeli prime minister, and Yoav Gallant, Israel’s defense minister until his recent sacking by fellow international fugitive Netanyahu.

It marks the first time that an ally of Western powers faces charges at the tribunal, notorious for only prosecuting African nationals for most of its more than 20 years of existence.

Karim Khan, the ICC chief prosecutor, said that judges found reasonable grounds “to believe that each has committed the war crime of using starvation as a method of warfare and crimes against humanity of murder, persecution and other inhumane acts.”

The pre-trial chamber that approved the arrest warrants also found grounds to believe that Netanyahu and Gallant “are each responsible for the war crime of intentionally directing attacks against civilians as a superior.”

The court also issued a warrant for the arrest of Muhammad Deif, the head of the armed wing of Hamas who Israel says was killed in a July airstrike that claimed the lives of dozens of Palestinians in al-Mawasi, the supposed “humanitarian zone” in southwestern Gaza.

The International Criminal Court stated that the pre-trial chamber found reasonable grounds to believe that Deif is liable for crimes against humanity and war crimes. Specific charges include “extermination; torture; and rape and other form of sexual violence” as well as taking hostages.

The court stated that “the coordinated killings of members of civilians at several separate locations” inside Israel during Hamas’ 7 October 2023 operation point to “the crime against humanity of extermination.”

The court statement refers to alleged acts of sexual and gender-based violence perpetrated against “some hostages, predominantly women” while they were held captive in Gaza. The court does not refer to acts of sexual violence in the context of the 7 October military operation.

This indicates that investigators have still not found evidence to substantiate allegations that Hamas members carried out systematic rapes on 7 October 2023, as has been claimed by Israeli and US officials and media and debunked by independent outlets like The Electronic Intifada.

Khan had also submitted applications for the arrest of Hamas leaders Yahya Sinwar and Ismail Haniyeh, “but later withdrew them following evidence confirming their deaths,” the prosecutor stated.

The arrest warrants were issued after the pre-trial chamber rejected a request submitted by Israel challenging the court’s territorial jurisdiction and another request from Israel challenging the court proceedings on a technicality.

The actual arrest warrants have been classified as secret, the court says, “in order to protect witnesses and to safeguard the conduct of investigations.”

The pre-trial chamber that approved the warrants also “considers it is also in the interest of victims and their families to be aware of the warrant’s existence.”

Khan hints at additional charges

Netanyahu cast the International Criminal Court charges as “anti-Semitic” and vowed that he would “not yield to pressure.”

Hamas welcomed the warrants against Netanyahu and Gallant and urged the court to indict additional Israeli leaders.

In his statement on Thursday, Khan suggested that there may be additional charges down the line.

“I am deeply concerned about reports of escalating violence, further shrinking humanitarian access and continued expansion of allegations of international crimes in Gaza and the West Bank,” Khan said.

It is possible that warrants for the arrest of additional Israeli officials may have already been approved but not publicized.

Israeli military prosecutors had warned that a lack of self-investigations – long discredited by human rights organizations – left Israeli soldiers and officers vulnerable to arrest and prosecution outside the country.

Under the principle of complementarity, the International Criminal Court only pursues prosecutions where relief cannot be found in domestic courts. The ICC tries individuals, rather than states, and generally goes after authors of policy rather than lower ranking soldiers or officials.

It is unthinkable that Netanyahu and Gallant would be put on trial for suspected war crimes in Israeli domestic courts.

A report published by Haaretz on Monday indicates that only 15 soldiers have been brought to trial for offenses in the context of the war in Gaza, mostly over the theft of weapons.

None of those cases were in regard to the deaths of at least 46 detainees in military custody since October 2023 or “unwarranted use of force against civilians or wanton destruction of property,” as Itay Epshtain, an expert on the laws of war, stated on X.

Only one of the criminal indictments involved violence against Gaza detainees: “A reserve soldier who was serving in Sde Teiman is suspected of conducting a series of violent incidents against Gazans detained there” after having documented his or her own suspected offenses, according to Haaretz.

While Israeli troops in Gaza have posted videos of themselves committing apparent war crimes on social media throughout the genocide, the lack of indictments for more serious offenses stems from the military advocate’s fear of ” severe public criticism,” Haaretz reports.

This will be hard for Khan to overlook. He said in May that Israel’s domestic proceedings “will continue to be assessed” by his office but said that it requires “independent and impartial judicial processes that do not shield suspects and are not a sham.”

The ICC arrest warrants are meanwhile “liable to create an opening for a weapons embargo by additional Western countries, which until now have made do with more moderate measures against Israel,” as Amos Harel writes in Haaretz.

“It could give a tail wind to many criminal complaints and investigations against [Israeli] soldiers and commanders that are being conducted in numerous countries,” he adds.

“First step” towards accountability

Three prominent Palestinian human rights groups – Al-Haq, Al Mezan and the Palestinian Center for Human Rights – said that even if overdue, the arrest warrants offer “renewed hope after more than a year of enduring Israel’s genocide.”

“This marks the first step toward holding accountable those responsible for the killing of our loved ones and the destruction of our homes – a reaffirmation that impunity cannot prevail indefinitely,” the groups added.

The arrest warrants will not provide immediate relief to Palestinians in Gaza, where health authorities have confirmed the deaths of more than 44,000 people in Israel’s offensive since October 2023.

Thousands of others are missing and presumed dead under the rubble. Some experts have estimated that the true death toll could be as many as 186,000 people in Gaza or more. This estimate is inclusive of indirect causes resulting from Israel’s destruction of the health care system and water and sanitation infrastructure, its engineered famine and denial of clean water.

The worst may be yet to come as harsh winter conditions bear down on Gaza. The survivors of Israel’s relentless attacks and punishing siege now face another cold and rainy season without adequate shelter and after their ability to withstand starvation and disease has already been stretched to the limit for months on end.

Israel has turned the northern governorate of Gaza into an extermination zone, cutting it off from food and other life essentials while attacking its hospitals and the remaining staff. On Saturday, an Israeli drone dropped bombs on Kamal Adwan hospital in Beit Lahiya, injuring Hussam Abu Safiya, the director of the facility.

On Sunday, Israel issued new evacuation orders in Shujaiya, a suburb east of Gaza City, forcibly concentrating more and more Palestinians into an increasingly small area of what was already one of the most densely populated territories in the world.

“Basically the entire population of Gaza are in desperate need of assistance amid a looming famine,” Natalie Boucly, a senior official with UNRWA, the UN agency for Palestine refugees, said on Friday.

“There has to be accountability for all the grave violations of international law that are occurring,” Boucly said. The approval of the arrest warrants by the ICC “is the start of that accountability,” she added.

Unprecedented

Netanyahu has joined Russia’s Vladimir Putin and Sudan’s Omar Bashir as two heads or former heads of government wanted by the court in The Hague.

The ICC does not have a police force or enforcement body to apprehend individuals subject to arrest warrants. Its 124 member states are now obliged to seize and extradite Netanyahu and Gallant should they travel to their territory.

Netanyahu can still travel to the US, where he received numerous standing ovations by Congress during his visit to Washington in July, as it is not a state party to the Rome Statue, the ICC’s founding treaty. The White House has given public assurances that the US will not arrest Israeli leaders.

US politicians on both sides of the aisle have vehemently rejected the ICC arrest warrants over charges related to Israel’s military offensive in Gaza aided and abetted by Washington, which vetoed a UN Security Council resolution demanding a ceasefire last Wednesday.

A US law passed in 2002 permits the use of “all means necessary and appropriate,” including military force, to free its nationals or those of its allies held by the court.

Tom Cotton, a Republican senator, has already threatened Karim Khan and others by invoking the law.

“Woe to him and anyone who tries to enforce these outlaw warrants. Let me give them all a friendly reminder: the American law on the ICC is known as The Hague Invasion Act for a reason. Think about it,” Cotton said.

Karim Khan, the ICC chief prosecutor, called on state parties to the court to “live up to their commitment to the Rome Statute by respecting and complying with these judicial orders.”

European officials initially signaled their support of the ICC following Thursday’s announcement.

But Antonio Tajani, Italy’s foreign minister, saidon Monday that the G7 countries – which include the US – “need to be united” on the matter of the arrest warrants.

Emmanuel Macron of France, also a G7 state, reportedly promised Netanyahu immunity in exchange for a monitoring role in the cessation of hostilities between Israel and Hizballah that came into effect early Wednesday.

The French foreign ministry stated on Wednesday that Paris intends to continue to work “in close cooperation” with Netanyahu and other Israeli officials. The ministry suggested that Netanyahu enjoys immunity because Israel is not a state party to the ICC, though the Rome Statute does not provide forsuch immunity.

“There is no immunity for atrocity crimes,” as Francesca Albanese, the UN special rapporteur on the West Bank and Gaza and the author of a damning examination of Israel’s genocidal campaign, stated on X.

While Israel is not a state party, Palestine is a member state. Crimes committed in a member state’s territory are within the ICC’s jurisdiction, regardless of whether the perpetrator is a national of a member state.

Like Israel, Russia is not a member of the ICC. But France, the US and other Western powers welcomed arrest warrants issued against Vladimir Putin soon after the invasion of Ukraine, which has accepted the court’s jurisdiction.

By claiming immunity for Netanyahu, Western powers appear to be prioritizing preserving impunity for Israel over prosecuting Putin for alleged war crimes related to Ukraine.

Hungary and the Czech Republic rejected the warrants while the Netherlands, the court’s host state which is also headed by a right-wing government, said that it would act on the warrants.

Gideon Saar, Israel’s foreign minister, canceleda planned visit by Caspar Veldkamp, his Dutch counterpart, in protest.

Ireland – with its own painful memory of starvation as a means of genocide – also said it would arrest Netanyahu if he steps foot in the country.

On Monday, the UK’s foreign minister said that London would fulfill its obligations and follow due process if Netanyahu visited the country but fell short of a clear commitment to detain the Israeli leader.

Josep Borrell, the EU foreign policy chief, said that the court’s decisions “are binding on all States party to the Rome Statute, which includes all EU Member States.”

Concerns

While advocates for the victims of Israeli crimes have welcomed the arrest warrants, there are worries about the quality of the court’s work on the Palestine investigation.

The aforementioned Palestinian human rights groups noted with concern the pre-trial chamber’s assertion last week that “Israel occupies at least parts of Palestine.”

In July, the International Court of Justice – a separate tribunal also seated in The Hague – made clear in ruling requested by the UN General Assembly that the West Bank, including East Jerusalem, and the Gaza Strip constitute a single territorial unit. Israel’s redeployment to the periphery of Gaza in 2005 did not change its legal status, the court affirmed.

That tribunal, also known as the World Court, declared Israel’s continued presence in the West Bank and Gaza to be unlawful.

The International Court of Justice, which is also considering a genocide complaint made against Israel by South Africa, confirmed that the obligation to affirmatively act to end the illegal occupation and dismantle the settlements does not fall on Israel alone, but on all states.

A close reading of Khan’s announcement of his request for arrest warrants, made in May, raises serious concerns – hardly for the first time – over his approach towards the investigation that was initiated by his predecessor, Fatou Bensouda, in early 2021.

The word “occupation” did not appear in Khan’s statement, though Khan noted in an interview with CNN that Israel has an affirmative obligation as the occupying power to ensure that “food and the objects indispensable for survival get to the civilians.”

The prosecutor’s narrow scope of focus on alleged crimes occurring on 7 October or later ignores the wider context of Israel’s rule of military occupation, settler-colonization and apartheid in the West Bank and Gaza Strip.

It also implies that Palestinian actors were the aggressor in the current hostilities, rather than its principal victims.

Palestinian human rights groups have urged Khan to turn his attention to the “plethora of Israeli crimes committed” in the West Bank and Gaza since June 2014, the beginning of the court’s temporal jurisdiction in Palestine.

Human rights groups have “submitted numerous communications to the ICC” including “substantial detailed files of evidence,” the three Palestinian organizations said.

These crimes include Israel’s settlement enterprise in the West Bank, the blockade on Gaza, the 2014 and 2021 military offensive in Gaza and the use of lethal force during the Great March of Return protests beginning in early 2018.

These issues were detailed by Bensouda in her thorough report issued in late 2019 upon the conclusion of a lengthy preliminary investigation of war crimes perpetrated in the West Bank and Gaza Strip.

Threats against the court

Fierce opposition to the Palestine investigation by Israel and its powerful friends, who have already resorted to thuggish threats against Khan and the court, means that justice for Palestinians at international fora remains an uphill battle.

Khan is meanwhile facing allegations of misconduct that were referenced by Netanyahu, who called the British barrister “a rogue prosecutor who is trying to extricate himself from sexual harassment charges.”

Khan denies those allegations and has declined to take a leave of absence while an external investigation examines the claims.

Donald Trump may sanction Khan once he is back in the White House two months from now.

During his first term, Trump imposed sanctionson Khan’s predecessor and another court official, putting them in the company of “terrorists and narcotics traffickers” or individuals and groups working on behalf of countries sanctioned by the US.

The court’s primary funders are European states with large economies, and those that oppose the prosecution of Israeli leaders may deal a death blow to the already underfunded ICC by starving it of financial support.

Some of the ICC’s biggest backers began advocating for a “zero growth” approach to resolve the court’s budgeting issues around the same time that the office of the prosecutor opened the preliminary examination in Palestine.

Khan cited his office’s limited resources when he announced in 2021 that the court would not pursue investigation of US personnel for suspected war crimes in Afghanistan, and that his focus would be limited to crimes allegedly committed by the Taliban and Islamic State.

In an article published by the Journal of Human Rights, Eric Wiebelhaus-Brahm and Kirten Ainley state that “the pressure on the ICC budget has had the effect, intended or not, of restricting the actual practice of trying cases to African situations.”

And while Afghanistan is not located in Africa, the principle holds that the pressure fends off scrutiny of the US and its allies and focuses on states or entities targeted by the US and its allies.

There was a sudden interest in voluntary contributions to the court by powerful countries following the opening of an investigation in Ukraine in 2022.

Wiebelhaus-Brahm and Ainley add that “when state parties support investigations, they are able to back up their support with financing.”

“That they have rarely ever done this in the Court’s history … suggests that their financial contributions are a reasonable proxy for their interests in international justice,” the authors state.

The response by ICC member states to Ukraine “seems to support the charge that the Court is a tool of powerful states,” the authors conclude.

Analyst Alex Christoforou observes that the ICC “put themselves in a box” by doing the bidding of the US and issuing an arrest warrant against Putin for far less serious and credible charges than those being made against Netanyahu.

The charges against Putin, despite Russia not being an ICC member state, forced Khan’s hand in bringing charges against Netanyahu, lest he be blamed for destroying the court’s reputation, Christoforou and other analysts argue.

These analysts believe the ICC’s arrest warrants against Netanyahu and Gallant will mean the end of the tribunal, having enraged the US and its powerful allies in Europe.

“This is the arrogance of power. You think that you’re so powerful that you can always bend things to your will,” according to analyst Alexander Mercouris. “And when you discover that you can’t, well, there’s nothing else for you than to smash the furniture.”

“In this case, that piece of furniture is the ICC, which is going to be smashed,” he said.

While a guarded prognosis is warranted, the failure of the ICC to survive the Palestine investigation is not a foregone conclusion – especially if powerful states keep feeling grassroots pressure and hearing demands for justice and accountability.

Should it fail, it will be one more means by which Israel and the US have destroyed the concept of international law – or at least proved it beyond doubt to be a cudgel wielded by the powerful against the weak and little more.

Even in that case, the ICC’s intervention will have cemented Israel’s status as a global pariah and accelerated all the repercussions that will follow.

Wednesday, 27 November 2024