US and Allies Split Over Netanyahu, Gallant ICC Arrest Warrant
NATO allies Canada, France, Spain, Belgium, Ireland, Italy, the Netherlands, and Switzerland have all announced they will arrest Netanyahu if he enters their territory. The United States disagrees.
The International Criminal Court (ICC) officially issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, turning the duo into internationally wanted war criminals.
According to the ICC statement announcing the warrants, Netanyahu and Gallant are wanted “for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024.” It continued saying that Netanyahu and Gallant “bear criminal responsibility [for]…the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”
The statement added, “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.”
A warrant was also issued for Hamas leader Ibrahim Al-Masri for war crimes committed on Oct. 7, 2023, but Israel has said that it previously killed Al-Masri in a July airstrike. The court has previously issued warrants for other Hamas officials like Yaha Sinwar and Ismail Haniyeh, but Israeli forces also killed them.
The issuing of the warrants comes nearly a year after the International Court of Justice (ICJ) issued a preliminary ruling that Israel was plausibly committing acts of genocide in Gaza. While the ICJ is an arm of the United Nations (UN), the ICC is legally independent and was created in response to “perceived insufficient response to atrocities by the UN.” While it is separate from the UN, many UN general assembly member states are also members of the ICC.
The United States and Israel are not members of the ICC, so it's unlikely that Netanyahu and Gallant will face any real consequences. The court has no police force and lacks the authority to enforce its rulings. Instead, the court relies on the willingness of member states to enforce its decisions.
As of February 2024, 125 countries are members of the court: 33 African States, 19 Asia-Pacific States, 19 Eastern European states, 28 Latin American and Caribbean States, and 25 Western European and other States. If Netanyahu or Gallant step foot in any member state, they could be subject to prosecution, so the warrants will complicate their ability to travel abroad.
In addition to the United States and Israel, other countries that are not members of the ICC include Russia, China, and India.
In response to the issuing of the warrants, Netanyahu called the ICC antisemitic, and the White House spokeswoman Karine Jean-Pierre told the press, “We fundamentally reject the court’s decision to issue arrest warrants for senior Israeli officials…[and] we remain deeply concerned by the prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision.”
This attempt by US officials to call into question the legitimacy of the ICC comes in stark contrast to their response to previous ICC decisions to issue an arrest warrant to Russian President Vladimir Putin in response to his invasion of Ukraine.
In response to Putin’s arrest warrant, Biden said that while the ICC is “not recognized internationally by us either,” the court made “a very strong point” and was “justified” in issuing the warrant. Biden added that Putin “clearly committed war crimes.”
Biden is correct to accuse Putin of committing war crimes in Ukraine, as independent UN reports have found that “war crimes and human rights violations committed by Russian authorities in Ukraine.” However, the UN has also found that “in relation to Israel’s military operations in Gaza, Israel committed war crimes, crimes against humanity, and violations of international humanitarian and human rights laws.”
The refusal to respect the ICC ruling puts the US at odds with other NATO allies, such as Canada, Ireland, Italy, Spain, and France, who have all said they would follow international law and arrest Netanyahu and Gallant if they enter their territory.
Regarding the need for cooperation among member states to enforce the court's orders, ICC prosecutor Karim Khan said, “We count on their cooperation in this situation, as with all other situations...We also welcome collaboration with non-state parties in working towards accountability and upholding international law."
Even though the majority of the global community supports the court, it has had difficulty enforcing its orders as leading superpowers routinely undermine the court whenever they are accused of wrongdoing. For example, even though numerous reports have accused the US Military of war crimes in Afghanistan and Iraq, US officials have worked to avoid ICC prosecution by directly threatening the court.
In response to ICC investigations into war crimes committed by the US Military following its post-9/11 invasions of the Middle East, Congress passed the “American Service-Members' Protection Act,” otherwise known as the “The Hague Invasion Act.” Then-President George W. Bush approved the law, which gave the US authority to sanction anyone who cooperates with the court, and even allowed for the US to use military force to “liberate any American or citizen of a U.S.-allied country being held by the court, which is located in The Hague.”
As a result, the court has been unable to successfully order the arrests of US war criminals, which would include every President in recent memory. In 2021, The Intercept reported that the ICC reopened its investigation into war crimes in Afghanistan, but as a result of US threats, the investigation will not include any conduct related to the US or its allies.