With Netanyahu warrant, international court tests priorities of Israel’s allies

The Explainer

The decision by the International Criminal Court (ICC) at The Hague to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant raises the stakes for Israel’s leadership as it wages its war in Gaza. The radical step by such an influential legal body creates political and legal concerns for both Israel and its allies, particularly in Europe, who must reconcile their commitment to a rule-based international order with their support for Israel.

What is the ICC for?

The ICC was created in 2002 to prosecute individuals for the world’s worst crimes, including genocide and crimes against humanity.

The court’s jurisdiction encompasses breaches of the Geneva Conventions, which lay out rules for the conduct of war, and apartheid, making it a potentially important arena for judging crimes committed in the Israeli-Palestinian conflict. The ICC has jurisdiction in any state that has ratified the Rome Statute, the agreement which created the court. Major powers Russia, the United States, and China are not Rome Statute signatories. Israel is also not a signatory, but Palestine did join the agreement in 2015.

The court is meant to hold perpetrators accountable, regardless of rank – be they presidents, generals, or rebel leaders – when their own countries’ courts are unable or unwilling to do so. Its focus is on establishing individual responsibility, unlike the International Court of Justice, also based at The Hague, which is concerned with state responsibility.

Before the ICC, serious international crimes were addressed by specialized tribunals. Examples include the Nuremberg trials, which prosecuted top Nazi officials after World War II, and various ad hoc tribunals set up by the United Nations over the Yugoslav War and the Rwandan genocide. But these were seen as insufficient, and gave rise to global support for the creation of a permanent court.

To date, the ICC caseload has focused primarily on atrocities in Africa. Judges have issued 59 arrest warrants, 11 convictions, and four acquittals. Prosecutors have recently turned their attention to Russia’s crimes in Ukraine.

What is the scope of the new arrest warrants?

On Nov. 21, the court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defense minister, Yoav Gallant, for alleged crimes committed since last year’s Hamas attack on Israel. Three judges unanimously agreed there are “reasonable grounds to believe” that Mr. Netanyahu and Mr. Gallant “bear criminal responsibility” for the war crime of starvation as a method of warfare and crimes against humanity since Oct. 8, 2023.

“It is a milestone in the pursuit of justice for Palestinians,” says Fiona Thorp of the international crimes and accountability team at the European Center for Constitutional and Human Rights. “At minimum, these arrest warrants will make it difficult for Netanyahu and Gallant to travel to the 124 state parties to the ICC, where they will face a threat of arrest.”

The warrants will make it harder for Israel to carry out diplomacy.

The ICC judges also issued an arrest warrant for Hamas military commander Mohammed Deif. Mr. Deif is believed to have been killed by an Israeli air strike in Gaza in July.

How likely are they to be arrested and what happens if they are?

The warrants depend on Rome Statute signatories to be executed, and states’ responses can vary. Russian President Vladimir Putin, who is wanted by the ICC for alleged crimes in Ukraine, defied the warrant by visiting Mongolia in September, but did not risk a visit to South Africa in 2023.

“There is little prospect that Netanyahu or Gallant will appear before the dock of the ICC in the foreseeable future,” says Anthony Dworkin, senior policy fellow at the European Council on Foreign Relations. “Even if Netanyahu lost power, it is hard to see a successor government handing him over. ... Nevertheless, in the longer term, they cannot be sure that unforeseen events will not ultimately lead to their being handed over.”

If the Israeli officials were arrested, they would be sent for detention at The Hague. There they would have the chance to contest the charges in the pre-trial phase. Three court judges would oversee any resulting trial. If convicted, Mr. Netanyahu and Mr. Gallant would only face prison time – the ICC does not use the death penalty – which would be served in a country willing to host them.

What are the implications for Israel’s allies?

The ICC arrest warrants mark the first time a sitting leader of a major Western ally is accused of war crimes and crimes against humanity by an international court that has broad global support.

Israel’s biggest ally is Washington, which has refused to join the ICC. President Joe Biden condemned the warrants against Israeli officials as “outrageous,” while his successor, Donald Trump, is threatening sanctions against ICC officials.

But all 27 member states of the European Union are backers of the ICC. This places European nations in a delicate position of needing to balance their commitment to international law against any support they extend to Israel, a particularly sensitive issue for Germany due to historical reasons.

EU foreign policy chief Josep Borrell stated that the ICC warrants against Israel’s prime minister and ex-defense chief should be “respected and implemented.” Prime Minister Viktor Orbán criticized the warrants as “outrageously impudent” and “cynical,” and extended an invitation to Mr. Netanyahu to visit Budapest.

Germany, a key weapons exporter to Israel and a champion of universal principles of justice, is “examining” the implications of the warrant. Italy, Ireland, Belgium, the Netherlands, and France have expressed willingness to act on the warrants.

“It is a judicial and political bombshell for all involved. The question is how it will play out,” says Anders Persson, senior lecturer at Linnaeus University in Växjö, Sweden. The ruling – and the fact that the crimes in the warrant are potentially ongoing – raises the risk of complicity for countries that supply weapons to Israel and could pave the way for sanctions against Israel.

“The ICC ruling will probably increase sanctions against Israel, both overt and covert, especially regarding weapons exports,” says Dr. Persson.

Still, he adds, past moves by the international community to influence Israel’s policies, like a 2016 U.N. Security Council resolution condemning settlement activity, haven’t changed much. So the court’s decision to issue warrants may not significantly alter the situation.