For judicial systems to carry international weight, they must be seen to be absolutely separate from politics. This presents problems, however, when the existence of such systems itself become political. In issuing a warrant for the arrest of Israeli premier Benjamin Netanyahu, which could be very difficult to enforce, the International Criminal Court (ICC) has left itself exposed. If it is perceived as ‘toothless’, the world will lose one of the only mechanisms available to deter war crimes, and that could have catastrophic results.
The warrant for Netanyahu was issued just before noon on Thursday 21 November 2024 and was accompanied by warrants for the arrest of Israeli Defence Minister Yoav Gallant and Hamas leader Mohammed Deif Ibrahim al-Masri – all three face charges of crimes against humanity and war crimes. It followed a night in which, according to the Gazan Health Ministry, a further 71 people died as a direct result of Israeli attacks and 176 injured.
The ICC had previously had its jurisdiction in this situation challenged on grounds that Palestine is not recognised as a sovereign territory by all United Nations member states. It rejected this challenge, noting that both Israel and Palestine are signatories to the 1949 Geneva Conventions and that at least part of Palestine is occupied by Israel.
Charges of war crimes and crimes against humanity
“There are reasonable grounds to believe that both individuals intentionally and knowingly deprived 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, from at least 8 October 2023 to 20 May 2024,” said the court in its statement. It continued, “The Chamber found reasonable grounds to believe that no clear military need or other justification under international humanitarian law could be identified for the restrictions placed on access for humanitarian relief operations… There are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.”
In relation to this, the court found that it was reasonable to suspect Netanyahu and Gallant of crimes against humanity, murder, persecution and other inhumane acts.
The charges against Deif, who was born in a refugee camp and first took up arms at the age of 22 during the first Intifada, relate to the 7 October 2023 attacks on Israeli civilians and to subsequent rocket attacks on Israel. It is not known if Deif is still alive, however. Israel claims to have killed him in a targeted air strike on 13 July.
Israeli and international responses
Israeli National Security minister Itamar Ben-Gvir responded to the warrant by making accusations of his own, claiming “The International Criminal Court in The Hague shows once again that it is antisemitic through and through.” An increasing number of Jewish people have been demonstrating against the conflict however, arguing that it is counterproductive as efforts to recover those taken hostage on 7 October continue. Some have also expressed concern that equating criticism of the Israeli regime with antisemitism endangers the lives of Jewish people worldwide.
A bigger stumbling block to action is the position of the US, with Joe Biden saying in a statement, “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security.”
Keir Starmer has previously made similar assertions about comparisons between the Israeli regime and Hamas, but has also said, that he respects the independence of the court and the rule of law. Because the International Criminal Court Act is enshrined in law across the UK, the police would be legally obligated to arrest Netanyahu if he entered British territory.
“The UK government must comply with the ICC; end all arms sales, impose economic sanctions and suspend its trade deal with Israel,” said Labour MP Zarah Sultana. “Nothing less will do.”
The challenges facing the ICC
From a purely legal perspective, many other countries are in the same position but could be hesitant to act for fear of the political consequences of doing so, especially in terms of their relationships with the US. There is a danger that its economic and military dominance in many parts of the world could effectively distort the justice system – as it did in the aftermath of World War Two, when several prominent Nazi scientists evaded justice by moving to the US as part of Operation Paperclip.
It was after the First World War, during the Paris Peace Conference of 1919, that efforts to establish an international body capable of trying international crimes began. They went on for decades, with powerful nations often willing to sign up in principal but reluctant to engage in practice. The ICC was finally established in 2002, but Israel continued to object to it, refusing to recognise the movement of settlers into occupied territory as a war crime.
Although it has had some successes, notably in relation to conflict in less powerful nations in Africa, the court has struggled to bring more influential figures to justice. A warrant for the arrest of Vladimir Putin in relation to child abductions in Ukraine has been in place since 17 March last year, with no arrest made. Warrants do have the effect of restricting travel, however, and increase pressure on all countries to reduce their political and financial support for those indicted.
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