On Monday, May 20, International Criminal Court Prosecutor Karim Khan requested pre-trial chamber warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Galant, overseeing operations against Hamas in Gaza. Charges were also brought against Hamas leaders. This decision is historic, as it is perhaps the first arrest warrant issued for a sitting leader of a democratic country. Additionally, this case has numerous nuances important for Ukraine. Read more in the Apostrophe article.
In a statement by the International Criminal Court Prosecutor, Netanyahu and Galant are held criminally responsible for war crimes and crimes against humanity committed since at least October 8, 2023. On that exact date, Hamas launched a massive attack, prompting Israel to start a military operation in Gaza. The charges include orchestrating starvation, intentional infliction of severe suffering, killings, attacks on civilians, extermination, persecution, and ‘other inhumane acts.’
Conversely, similar arrest warrants have been issued for Hamas leaders Yahya Sinwar, Muhammad Deif, and Ismail Haniyeh. The investigation asserts that these three Hamas leaders bear criminal responsibility for war crimes and crimes against humanity committed in Israel and Gaza since October 7, 2023. Charges against them include extermination, killings, hostage-taking, sexual violence, torture, and mistreatment of prisoners. According to the ICC Prosecutor, all three Hamas leaders are responsible for the deaths of hundreds of Israeli citizens.
A good company
This is not the first time the ICC has issued arrest warrants for sitting top officials. In Ukraine, the most notable case involves Russian dictator Vladimir Putin and Children's Rights Commissioner Maria Lvova-Belova. However, there are other instances, mainly concerning crimes in African countries. The ICC has issued arrest warrants for Libyan leader Muammar Gaddafi and Sudanese President Omar al-Bashir. Thus, the Israeli Prime Minister and Defense Minister find themselves in a very controversial company.
Nevertheless, even an arrest warrant partially restricts the movement of global leaders. In 2022, the ICC issued arrest warrants for Putin and Maria Lvova-Belova in connection with charges of unlawfully deporting children from Ukraine. Since then, Putin has avoided visiting countries that have ratified the Rome Statute, including some that are friendly to Russia.
However, several countries have not signed the Rome Statute, meaning they do not recognize the ICC's jurisdiction on their territory. This creates significant challenges for prosecuting the accused.
'Israel, like countries such as the US and Russia, has not ratified the Rome Statute and claims that the court's jurisdiction does not apply to them. However, countries participating in the ICC are obligated to cooperate with it, including taking measures to arrest individuals wanted by the ICC when a warrant is issued,' explains lawyer Olga Drachevska, to Apostrophe.
Israel faces greater leverage for influence
Nevertheless, the UN Security Council has the authority to refer cases to the ICC even for individuals from non-member countries. This occurred, for example, with Sudan and Libya. In such situations, Security Council decisions are binding for all UN member states, which must cooperate with the ICC. Similarly, states not party to the Rome Statute can voluntarily cooperate with the ICC based on specific agreements.
Additionally, accused individuals can be detained while traveling to countries that are parties to the Rome Statute or have extradition agreements with the ICC. This scenario is possible if the ICC has issued an arrest warrant and these countries are willing to execute it.
Moreover, certain regional organizations can facilitate the arrest and extradition of the accused. For instance, the African Union or the European Union can adopt decisions that contribute to the execution of arrest warrants issued by the ICC.
'An important aspect of the ICC's work is cooperation with member states and other international organizations, as successful investigation and prosecution of crimes largely depend on international support and cooperation,' emphasizes Olga Drachevska.
It's worth noting that another court located in The Hague, the International Court of Justice (ICJ), is also considering a lawsuit against Israel. Unlike the ICC, the decisions of this court are binding on all UN member states. The plaintiffs here are South Africa and several other countries. They have accused Israel of genocide in connection with its military actions in Gaza. The proceedings of this lawsuit are expected to take years.
Political isolation?
Comparing Israel to Russia, Libya, or Sudan, as mentioned earlier, isn't quite appropriate. Israel isn't an outcast on the international stage, and its economy is deeply integrated into the global economy.
The global reaction to the ICC's initiative depends entirely on political contexts.
Indeed, France initially expressed support for the International Criminal Court, but then the country's Foreign Minister, Stéphane Séjourné, stated that simultaneous requests by the ICC prosecutor for arrest warrants ‘should not equate Hamas with Israel.’ On one hand, there's a ‘terrorist group that welcomed the attacks on October 7th and claimed responsibility for them,’ and on the other hand, there's a ‘democratic state of Israel, which must adhere to international law during a war it did not initiate.’
In turn, the German Foreign Ministry states that the court will have to address ‘a series of complex questions,’ including questions about its jurisdiction and the complementarity of investigations ‘between the affected constitutional states, such as Israel.’
In the case of Europe's stance, several factors are important. This primarily includes strong economic ties with Arab countries, the presence of a large number of Muslim migrants who have become voters in many places, and sentiments among the university faculty, which educates the political elite.
‘In the world, there's a leftward shift happening, and socialists, who basically hold leading positions in universities in the United States and generally in the West, are trying to influence educated people,’ says international commentator Vladyslav Akulov-Muratov in a comment to Apostrophe.
And all of this is more symptoms against the backdrop of the general "root cause" - the stalemate regarding Palestine overall. In Israeli politics, there hasn't emerged a vision of what to do with the Palestinian Arabs after the defeat of Hamas.
‘The issue is that Israel is essentially doing something that cannot be done. It denies Palestinians the right to their state while demanding its own, effectively denying Palestinians their right to a state of their own. So, what happened in October 2023, with 1,200 casualties, is indeed horrific. But what they were doing to Palestinians in principle before that is truly unacceptable,’ emphasizes Vladyslav Akulov-Muratov.
The announcement of the arrest warrants coincided with the decisions of Norway, Ireland, and Spain to recognize the state of Palestine. Although, of course, both decisions – by the ICC and regarding Palestine – were prepared earlier, the timing of such a coincidence is noteworthy in itself.
The dilemma for the United States
As expected, the United States opposed the arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Galant. Furthermore, they are preparing sanctions against ICC officials, but the rhetoric here is quite cautious. Elections are approaching. And for President Joe Biden's team, it's important to retain the support of both American Jews and pro-Palestinian voters from the left wing of the Democratic Party.
On the other hand, the United States needs to prevent the escalation of the conflict in the Middle East on a larger scale. However, Netanyahu is questioning these efforts by stating his intention to continue the military operation.
‘For Americans, it's crucial to prevent a flare-up until they transition to Industry 6.0 and try to regain leadership through it. Therefore, it's important for them to quell this conflict now to focus on the more significant conflict with China. Meanwhile, the Chinese (indirectly through Iran and Hamas - Apostrophe) are undermining the West's authority in this way. In this case, it's simply advantageous for many if Netanyahu remains in his position and quietly sits in Israel,’ notes Vladyslav Akulov-Muratov.
The chances of Israeli politicians actually ending up in the dock are slim. However, the arrest warrants serve as another argument for opponents within Israel to demand Netanyahu's resignation. The challenge lies in finding willing replacements.
