For Whom the Bell Tolls
International Criminal Courts Issues Warrants for the Arrest of Israeli Prime Minister Benjamin Netanyahu and Former Defense Minister Yoav Gallant
Better late than never, the saying goes. On 21 November, the International Criminal Court (ICC) issued arrest warrants for Benjamin Netanyahu, Yoav Gallant, and Mohammed Diab Ibrahim al-Masri (Deif). For Palestinians, the ICC’s delay in issuing warrants for the arrest of war criminals Benjamin “Bibi” Netanyahu and his former Defense Minister Yoav Gallant was paid for in the blood of Palestinian men, women, and children.
Regardless of the timing, submitting warrants for Netanyahu and Gallant’s arrest is a watershed moment in the evolution of international law. The ICC additionally issued an arrest warrant for Mohammed Deif, commander in chief of the al-Qassam Brigades. Israeli forces alleged that they had killed Deif months ago. However, the ICC prosecutor did not rescind the application for Deif’s arrest as he did for the deceased Yahya Sinwar and Ismail Haniyeh. Never before has an ally as critical to American foreign policy as Israel been served an arrest warrant by the world’s highest Court.
Approaching Supernova
Most importantly, the ICC’s issuing of warrants for the arrest of Deif, Netanyahu, and Gallant represents a first step toward justice for the victims of the Hamas assault on 7 October and Israel’s genocide in Palestine. The step also represents an essential moment for nations that have historically suffered at the hands of powerful neighbors or global superpowers; recourse at the judicial level is possible.
What is not at all surprising but nonetheless disappointing has been the reaction of Western states to the addition of Netanyahu and Gallant to the ICC’s ledger. Rather than adhere to the principles that Western states exalted following World War II, several Western nations, the U.S. included, have chosen to renege on their international obligations and, conversely, decided to continue shielding Israel from repercussions. The selective application of international law is antithetical to the mission of preventing conflict and atrocity crimes while promoting peace and cooperation between states.
Selectively applying the law undermines the mandate of institutions like the International Criminal Court (ICC) and the International Court of Justice (ICJ), creating a hierarchy of states that must follow the law and states that are tacitly above the law. What we have seen with the ICC warrants for Israeli leaders is an inflection point that underscores the hierarchical nature of the international system, one in which states are theoretically on equal footing but, in actuality, are not. Our current system, one in which Western nations have the right to bomb nations of the Global South, and those nations of the South have little to no recourse, is cracking.
South Africa’s lodging of genocide charges against Israel at the International Court of Justice began the cracking of the imperial edifice. ICC Prosecutor Karim Khan laid the groundwork for the dislodging of Western and former colonial nations from their exalted status above the law as he requested charges filed against Israeli leaders in May. As mentioned earlier, this was the first time that leaders of a self-described Western state, Israel, have faced charges at the ICC. In its history, the Court has overwhelmingly targeted African war criminals while often being unwilling or unable to address claims of war crimes by powerful Western nations.
Exemplary of this was the rejection by Prosecutor Karim Khan in 2021 to investigate crimes committed by American and allied forces in Afghanistan during the former’s occupation of the latter. Instead, Khan said his office would investigate crimes of the Taliban and ISIS-K (Islamic State in Khorasan Province) because they were the “worst crimes” committed in the Afghan theatre. Khan’s unwillingness to challenge American war criminals was reinforced by the United States’ ‘Hague Invasion Act’ signed into law by the Bush Administration in 2002 to protect American personnel from prosecution.
Of the several dozen individuals wanted by the ICC, only a handful are from nations outside of Africa. There are several South Ossetian officials wanted for crimes committed against ethnic Georgians in addition to the warrants for Russian officials for their conduct in Ukraine. Western officials joining this club have triggered reactions from states that range from an endorsement of the ICC’s decision to threatening sanctions or an invasion of the Netherlands. The reactions are symbolic of the non-committal nature of Western states to human rights and the rule of law. Such non-commitment directly threatens the survival of an order that purports to be based upon rules and rights.
For the Right to Live, For the Right to Bomb
The United States, predictably, denounced the issuing of warrants for the arrest of Netanyahu and Gallant. President Biden, a self-proclaimed Zionist, declared:
“The ICC issuance of arrest warrants against Israeli leaders is outrageous. Let me be clear once again: whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.”
Several Western leaders echoed Biden’s criticism of the ICC for allegedly equating the two Israeli leaders with Hamas officials. Debating whether Israeli officials or those of Hamas are ontologically more or less evil than the other is not the job of the ICC.
The International Criminal Court is the world’s highest criminal Court, comprising 124 nations across the globe. According to the Rome Statute, the Court’s mandate is to investigate human rights violations, war crimes, and crimes against humanity. In this function, the Court’s Prosecutor, Karim A.A. Khan, submitted arrest warrant applications for five individuals in May for war crimes and crimes against humanity.
Hamas officials targeted for their roles in orchestrating the 7 October attacks include Hamas Political Bureau Chief, Ismail Haniyeh, the Leader of Hamas in the Gaza Strip, Yahya Sinwar, and Commander-in-Chief of the al-Qassam Brigades, Mohammed Deif. Likewise, for its inhumane response to the attacks, including the charge of using starvation as a weapon of war, the ICC Prosecutor applied for warrants to arrest Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant.
In the eyes of the Court, war criminals are not compared to one another. They are adjudicated based on the facts and circumstances surrounding the charges against them. A war criminal is a war criminal full stop. Hailing from a democracy does not prevent an individual from committing war crimes. If anything, the leader of a purportedly democratic nation being charged with high crimes is an indictment of the social climate and domestic support that the leader enjoys.
Several nations have come out with explicit support for the ICC, including one of Palestine’s most consistent supporters, the Irish, whose Prime Minister called the warrants “an extremely significant step.” European Union (EU) foreign policy chief Josep Borell reiterated to the bloc that ICC warrants are non-binding and that every EU member is a signatory to the ICC’s founding treaty.
“The states that signed the Rome convention are obliged to implement the decision of the court. It's not optional.”
The United States, Russia, China, and Israel are not members of the ICC. However, the state of Palestine is. By ratifying the Rome Statute, Palestine grants the International Criminal Court standing over crimes committed on Palestinian soil or crimes committed by Palestinians. ICC jurisdiction over Palestine grants the court jurisdiction over the 7th October attacks in Israel and the subsequent Israeli response in Gaza.
The ICC’s theory establishing jurisdiction in Israel and Palestine is similar to the rationale used to establish standing for the ICC to investigate war crimes in Ukraine and Russia. Neither Russia nor Ukraine are active members of the ICC. However, Ukraine has twice declared that it accepts ICC jurisdiction “with respect to alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014,” the second declaration accepted jurisdiction from 2014 on. This year, on 25 October, Ukraine ratified the Rome Statute and will become the 125th member of the Court on 1 January 2025.
Nominally, logically, and legally, if the ICC does not have standing to prosecute Israeli government members for crimes committed in Gaza, then it does not have standing to prosecute members of the Russian government for crimes committed in Ukraine.
As mentioned, Western states have primarily chosen to destroy any semblance of an “international rules-based order” in favor of allowing Netanyahu and Gallant to travel freely. President Joe Biden has led the charge shielding Israel, recently joined by a German government spokesman who cast doubt on whether Netanyahu would be arrested if he arrived in Germany. Reacting to the warrants, the spokesman stated:
“On the one hand, there is the importance of the International Criminal Court, which we strongly support, and on the other hand there is the historical responsibility [to Israel] you mentioned. This statement should be considered in the light of these two points. I would be inclined to say that I have difficulty imagining that we would make arrests in Germany on this basis.”
Former Defence Minister Yoav Gallant allegedly plans on traveling to the United States in early December to meet with American defense officials.
In a memo released shortly after a ceasefire brokered by the U.S. and France in Lebanon between Hizbollah and Israel, the French Foreign Ministry announced that Prime Minister Benjamin Netanyahu was entitled to “immunities” that could obfuscate French authorities from acting on their obligations under international law.
The memo released by the French highlighted the position of Netanyahu as acting in an official capacity and the fact that Israel was not a party to the ICC and had not ratified the Rome Statute. This stance stands in stark contradiction to the French position on ICC arrest warrants for Russian President Vladimir Putin. Following a visit by Putin to Mongolia, an ICC member state, the same French Foreign Ministry sharply criticized Mongolian authorities for failing to arrest President Putin. French authorities then reiterated their commitment to international legal and justice systems, declaring that “no one responsible for crimes committed by Russia in Ukraine, whatever their status, should escape justice.” Several days later, the French Foreign Ministry claimed they would treat the Netanyahu and Putin warrants “the same.” Time will tell of the French position.
Britain, another key ally alongside the Americans and French, has also slow-walked their commitments under international law, deferring to a “domestic process.” Gerhard Kemp, professor of Criminal Law at UWE Bristol, assailed the position of the British government:
“The UK government is hiding behind vague ‘domestic processes’ to avoid clearly saying that it will arrest Netanyahu should he enter the UK, as is the UK’s legal duty as a state party to the ICC. These ICC arrest warrants were applied for months ago. The UK government must surely have prepared its position on the implications for the UK authorities should the arrest warrants be granted. When the ICC issued an arrest warrant for Vladimir Putin, UK ministers immediately welcomed the step. Failing to do so in this instance looks like a clear case of double standards that damages the administration of justice.”
Simply put, the positions espoused by the Germans, British, and Americans are ludicrous at best and, at worst, constitute the aiding and abetting of war criminals wanted by the world’s highest criminal Court.
No one is above the rule of law. No one. The positions of those nations questioning the ICC undermine the foundation of international law while unveiling the service of international law under Western stewardship as a vehicle of imperial ambition and dominance. No one is above the law. Justice is not justice if it is doled out on account of nationality or political alignment. Western nations, especially those obligated by the Rome Statute, must ensure that Benjamin Netanyahu and Yoav Gallant are immediately arrested in accordance with international law. Anything short of this is a miscarriage of justice and normalizes heinous violations of international law with no recourse. The bell tolls for Netanyahu and Gallant, but the West may instead send the bedrock of international law to the reaper rather than see justice exercised by the world’s highest judicial body.
A better world is possible if we join our brothers and sisters in fighting for it, no matter the cost. Should all of Earth’s inhabitants have the right to live, or should the most powerful of the world’s nations retain the right to bomb and kill the poorest among us?
How gray and hard the brown feet of the wretched of the earth.
How confidently the crippled from birth
push themselves through the streets, deep in their lives.
How seamed with lines of fate the hands
of women who sit at streetcorners
offering seeds and flowers.
How lively their conversation together.
How much of death they know.
I am tired of ‘the fine art of unhappiness.’
-Denise Levertov