Does the ICC warrant mean anything to Netanyahu?

On 20 May 2024, Karim Khan, the Chief Prosecutor of the International Criminal Court (ICC), filed applications for arrest warrants against top Israeli officials and Hamas leaders in Gaza. 

Benjamin Netanyahu, the Israeli prime minister; Yoav Gallant, the Israeli defence minister; and three Hamas leaders—Yahya Sinwar, the organisation's commander; Ismail Haniyeh, the political bureau chief; and Mohammed Deif, the leader of the group's armed wing, the al-Qassam Brigades—are among them. 

According to Karim Khan, his team has requested the warrants with the pre-trial chamber of the court, and a group of judges will determine whether or not to grant them. They will issue the warrants, intended to bring Netanyahu, Gallant, and Hamas leaders to trial before the ICC, if they conclude that there is a likelihood of conviction.

As of right now, no warrants have been issued. 

The charges against Netanyahu and Gallant include causing extermination, using starvation as a war strategy, denying humanitarian relief supplies, and deliberately targeting civilians during conflict. The charges against Hamas leaders are extermination, murder, taking of hostages, rape, and sexual assault in detention. 

"No foot soldier, no commander, no civilian leader - no one - can act with impunity. The law cannot be applied selectively. If that happens, we will be creating conditions for its collapse," said Khan. 

Can Netanyahu be arrested if a warrant is issued? 

According to customary international law, a head of state has immunity ratione personae (the immunity of a diplomat or head of state to most criminal and civil actions brought in foreign courts while they remain in office) from being tried in the domestic courts of another state due to their role. This protection is like a shield, but the ICC says this shield doesn't work in their court. 

Therefore, even though a leader may enjoy protection at home, the ICC can still bring charges against them for serious crimes.

Immunity ratione personae was also omitted in the Nuremberg Tribunal, where it was held that "He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state moves outside its competence under international law," and Article 7 of the Nuremberg Tribunal's Charter supports this proposition. 

Contrary to popular belief, there has long been support for prohibiting the defence of immunity when international law is violated, and experts have argued that "the era of absolute immunities is long gone.". 

This reiterates the former argument that heads of state like Vladimir Putin and Omar Al Bashir's immunity does not apply if they appear before an international court. Both had arrest warrants issued against them by the ICC. 

The problem is that the ICC can't arrest people itself. They rely on other countries to help them out. Some countries argue that because of the protection shield, they shouldn't have to arrest leaders from other countries.

Article 86 of the Rome Statute of the International Criminal Court stipulates that a state party is under a general obligation to cooperate and cannot question the legality of the warrant. Article 89 of the Rome Statute grants the authority to request or order the arrest of a state party under a warrant, subject to specific exceptions.

So, Netanyahu will face arrest if he sets foot in any of the 124 signatory countries. This is contingent upon the issuance of a warrant against him.

Now, the countries bound to oblige the ICC include all of Western Europe, like the UK, France, Germany, Norway, Sweden, Spain, or Portugal; countries like South Korea, Australia, Japan, Canada, or Mexico; and the entirety of South America. 

There has been an instance of the ICC ordering its signatory country to arrest another head of state travelling to that country. Omar al-Bashir was the head of state for Sudan, whose brutal dictatorship saw the Darfur Crisis and mass repression. The ICC charged him with five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. The ICC issued a first arrest warrant in 2009 and a second one in 2010.

In 2015, Bashir visited a summit of the African Union in South Africa. At first, the South African authorities refrained from arresting Bashir on the grounds of his immunity as head of state. The ICC decided that the South African government was "obliged to undertake all rational measures to apprehend President Al-Bashir." Omar Al Bashir managed to evade arrest by fleeing South Africa, a precedent has been set to comply with the ICC warrant. 

This is the fear that prevented Vladimir Putin from going to South Africa for the BRICS Summit in August. 

Additionally, the warrants may have negative effects on Israel, such as an arms embargo or economic sanctions. If issued, they will classify Israel as one of a few countries, including Russia and Iran, that are considered to be violating international law.

Will it put pressure on Israel to stop the violence?

Hardly. 

Unlike the International Court of Justice (ICJ), which is hearing South Africa's case against Israel and deals with international conflicts, the International Criminal Court (ICC) hears instances involving people. Israel acknowledges the authority of the International Court of Justice (and has thus participated in its sessions), but not the International Criminal Court. So, Israel is not bound by the ICC, rather, it is feeling vindicated. 

Israeli Prime Minister Benjamin Netanyahu said that a call for arrest warrants by the ICC against him and his Defence Minister Yoav Gallant will not tie Israel's hands in its war on Gaza. In a video statement, Netanyahu said the ICC's warrants are directed against all of Israel, and the court's move was antisemitic. 

Israel's War Cabinet Minister Benny Gantz said, "Drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror and the leaders of a blood-thirsty terror organisation (Hamas) is a deep distortion of justice and blatant moral bankruptcy."

At this point, Israel is bogged down in a quagmire of its own making, with no clear way out. Israel has failed to successfully rescue the hostages. The international outrage over Israel's war is rapidly increasing, as evidenced by the growing number of university sit-ins worldwide and the vocal disapproval expressed towards the Israeli participant in the Eurovision song contest. So, for Israel, it is a lose-lose situation. 

For Netanyahu, the outcome is far from achieving his stated aims in the war, and international criticism is only getting worse. Where does this leave Netanyahu? 

He's facing pressure from all sides, with no good options. He risks losing his far-right coalition partners if he signs the ceasefire. With 71% of Israelis wanting Netanyahu to resign, he would almost certainly lose an election held any time soon. 

With internal pressure rising to release the hostages, he has only one way to save face: obliterating the Gazans. An ICC warrant is not going to stop him, all the more so with the Biden administration behind him. 

Will there be pro-Israeli repercussions against the ICC prosecutors? 

US President Joe Biden has burned all bridges to his re-election. His actions, such as allowing the Gaza genocide to continue and using brute force to suppress student protests, have significantly weakened his chances, yet he continues to firmly support Israel.

He called the ICC decision "outrageous."

"Let me be clear: whatever this prosecutor might imply, there is no equivalence—none — between Israel and Hamas," Biden said in a statement. "We will always stand with Israel against threats to its security." 

Pro-Israeli US lawmakers spoke out in support of Israel and against the ICC prosecutor's decision, including some Democrats. House Speaker Mike Johnson said Congress could vote on a bill sanctioning the ICC over the move. Other Republican senators are pushing for damning sanctions on the ICC. 

Despite the call for a ceasefire, Israel has persisted in its brutal offensive in the Gaza Strip. Over 35,500 Palestinians, predominantly women and children, have lost their lives at the hands of Israelis since October of last year, while over 79,600 others have sustained injuries.

After over seven months of Israeli occupation, Gaza remains in ruins due to a crippling bombing campaign. The Gazans are suffering in an inhumane condition amidst a blockade of medicine, food, and clean water. It is an ethnic cleansing mission by the Israelis. 

In a sane world, Netanyahu and his ilk should have been tried for crimes against humanity. We however do not reside in one.