ICC warrants for Netanyahu, Gallant game changers

The arrest warrants issued by the International Criminal Court (ICC) for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant for war crimes and crimes against humanity are game changers. The hard fact that ICC warrants have been issued for their arrest after 13 months of a deadly and devastating war in Gaza forces the reluctant international community to hold them accountable for their actions.

Netanyahu and Gallant could have avoided ICC warrants if they had submitted the charges levelled against them to Israeli courts. Netanyahu did not dare use this option as he faces Israeli accusations that he is responsible for the failure of the Israeli military to predict and prevent the October 7 attack on Israel by Hamas which killed, Israel says, 1,200 and abducted 251 Israelis and visitors. He is also held responsible for the belated Israeli army’s response to the Hamas invasion. These two failures have prompted Netanyahu to compensate by killing more than 44,500 Gazans and turning the Strip into a wasteland in a campaign which has violated international law and norms. The ICC only intervened in the absence of the involvement of the Israeli judiciary in deciding whether war crimes and crimes against humanity have been committed against Palestinians in Gaza and the West Bank since the Hamas raid.

The ICC warrants could make other world leaders pause before waging wars and committing war crimes and encourage adherence to international law and the Geneva conventions. If Netanyahu and Gallant were to appear before the ICC judges, they would be the first top figures from a Western-aligned democratic country to be charged with the court's core crimes, as they could face nine years to life in prison. Netanyahu and Gallant will have to avoid setting foot in any of the 124 signatories of the ICC's Rome statute. These include the 27 member states of the European Union, Britain, Canada, Australia, Jordan, Mexico and Palestine. The Netherlands, Britain, France and others have said they would abide by their commitment and arrest the Israelis. Naturally, the US, which is not bound by the ICC, loudly rejects the warrants. This makes the US an outlier although the West which claims to uphold law and order on the international scene. Rejection by both Israel and the US undermines any residual moral authority they enjoyed around the world.

ICC Prosecutor Karim Khan came under extreme pressure, was smeared and threatened when he applied for the warrants. The ICC has 18 judges who are elected by member states and serve in the pre-trial, trial and appeals processes. Three judges ruled that warrants should be issued: France’s Nicolas Guillou, Benin's Reine Alapini-Gansou, and Slovenia's Beti Hohler. They have had distinguished careers in their fields of expertise. Hohler wrote the opinion which led to the ICC accession of Palestine. She argued that "the parties to the conflict should accept" changes in the "legal framework" effected by Palestinian membership while it is not a fully-fledged state.

Before the Netanyahu-Gallant warrants were issued, the most high profile figure to face arrest is Russian President Vladimir Putin and his aide Maria Lvova-Belova who were in 2023 accused of committing the war crime of unlawfully transferring children from occupied Ukraine to Russia during the ongoing war. Putin has severely curbed his travel since then and did not attend a BRICS (Brazil, Russia, India, China, South Africa) summit in Johannesburg in August 2023 as South Africa is an ICC member.

Since its establishment in 2002, the court has issued 56 warrants and has undertaken 32 cases having more than one suspect. Twenty-one people have been detained and have appeared before the court while at least 20 remain at large. There have been 11 convictions, and four acquittals and charges have been dropped against seven who died. Of the convictions, only six were sentenced for war crimes: all were African militia leaders from the Democratic Republic of Congo, Mali and Uganda. High-profile Netanyahu and Galant have been thrust into shaming, low-profile company.

While ICC warrants may be difficult to serve, the Arab Organisation for Human Rights in Britain has urged ICC Chief Prosecutor Khan to call on Interpol (the international police organisation) to issue red notices for the arrest of Netanyahu and Gallant. This would be in line with a 2004 agreement and would bind police forces in all 196 Interpol members to trace and provisionally arrest ahead of extradition. This would be vehemently opposed by Israel and its friends and allies which are members Interpol.

Nevertheless, if Interpol went ahead with red notices, this would add further impetus to the efforts of the Palestinian Authority acting on behalf of the state of Palestine. The Authority applied to the ICC for it to extend its jurisdiction to tackle alleged Israeli war crimes committed by Israel in the occupied West Bank and East Jerusalem after June 2014. ICC engagement was one of the few victories over Israel and its allies the weak and discredited Palestinian Authority has achieved since it was established in 1994. Therefore, the warrants must be regarded as a second victory on the legal front in the 76-year long struggle for possession of Palestine.