The International Criminal Court wants to arrest Netanyahu. Its own legitimacy is on the line.

Columnist
Dan Perry
November 21, 2024

The International Criminal Court has made history by issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant — the first such action, ever, against the heads of a true democracy.

And although the warrants have long been anticipated, after being requested by a prosecutor months ago, the charges of war crimes and crimes against humanity sent shockwaves through Israel. They will restrict Netanyahu’s ability to travel, especially in Europe, and also set the ICC on a collision course with President-elect Donald Trump’s incoming administration, in what could prove to be a watershed test of the court’s power.

For Israelis, even critics of Netanyahu, the decision is certain to inflame suspicions that the world’s international bodies are irredeemably biased against them. Israel and its defenders have already regularly objected to the United Nations’ human rights watchdog groups’ undeniably obsessive and disproportionate focus on Israel. Now, the warrants — plus the fact that no Western leaders were ever indicted over the civilian damage inflicted during the brutal war on terror, which left countless thousands of civilians dead — are sure to make that conspiratorial, defensive outlook worse.

And for the ICC, the decision to issue the warrants risks imperiling its international standing. During his first term, Trump imposed sanctions on the court over its investigation of war crimes in Afghanistan, banning its officials from entering the United States, and freezing some of its financial assets. And while these measures were lifted by President Joe Biden, he nevertheless criticized the ICC for targeting Netanyahu, arguing that doing so equated a democratic state with a terrorist organization.

What this means: The ICC is betting that it can emerge from a showdown over its legitimacy with the U.S. with its authority intact.

In a reflection of what is to come, Speaker of the House Mike Johnson, responding to the warrants, argued that the ICC has no authority in Israel or the U.S., as neither country formally recognizes it. “In the absence of leadership from the White House, Congress is reviewing all options, including sanctions, to punish the ICC and ensure its leadership faces consequences if they proceed,” Johnson said in a statement. “If the ICC is allowed to threaten Israeli leaders, ours could be next.”

Legislation passed by the House earlier this year gives the president authority to impose sweeping sanctions on ICC member states that arrest U.S. allies — authority that Trump is all but certain to use, if Senate Republicans further the legislation. Trump’s stance on the ICC has consistently been hostile; he dislikes institutions of global governance in general, and prefers the preservation of countries’ sovereign rights.

But U.S. opposition to ICC jurisdiction has long been a bipartisan issue; it will be difficult for the court’s stateside defenders to claim that any measures taken against it are the outlying gesture of a new isolationist president.

Increased pressure from the U.S. could lead ICC member states to refuse to enforce its rulings, as has happened in the past, including in Mongolia’s recent decision not to detain Vladimir Putin despite ICC charges, and South Africa’s refusal to arrest Sudanese President Omar al-Bashir for genocide. These precedents highlight the court’s limited ability to enforce its mandates, especially when targeting powerful leaders or controversial cases.

The court’s simultaneous charges against the almost certainly deceased Hamas military leader Mohammed Deif are likely, in part, an attempt to counter claims of bias, and help member states resist pressure to refuse to honor the warrants against Israeli leaders. It will be a long battle.

In Israel, too, political leaders reacted with fury. The Prime Minister’s Office called the charges — which focus on allegations that Netanyahu and Gallant deliberately blocked humanitarian aid to Gaza during the current war, causing mass starvation — “absurd” in a statement that likened them to “a modern Dreyfus trial.” Further, the statement claimed the decision stemmed from ICC Chief Prosecutor Karim Khan’s attempts to “save his skin from serious charges against him for sexual harassment” — Khan is under investigation on claims, which he denies, that he harassed a junior staff member over a yearlong period — and “biased judges motivated by antisemitic hatred of Israel.”

Housing Minister Yitzhak Goldknopf echoed these sentiments, declaring the decision was “simply antisemitism, always antisemitism.” And President Isaac Herzog, who hails from the opposition to Netanyahu, condemned the ICC’s move as “a dark day for justice.” Herzog accused the court of siding with “terror and evil over democracy and freedom” and of becoming “a human shield for Hamas’ crimes against humanity.”

But even while Israel may preach resistance, the warrants will have an immediate and severe impact on Netanyahu, particularly when it comes to diplomatic travel.

The 125 ICC member states, including all European Union countries, are obligated to arrest suspects if they enter their territory. This leaves Netanyahu with limited options for international engagement, and could hinder his ability to conduct state business abroad. Even flight through ICC member airspace poses potential risks. Gallant, whom Netanyahu recently fired from his war cabinet, faces similar restrictions.

How to handle these very real consequences? Israel could theoretically challenge the charges by conducting its own investigation, which might compel the court to defer. Another option is for the United Nations Security Council to freeze the case, although this would require agreement from all five permanent members — an unlikely scenario given geopolitical divisions.

In the end, it is a waiting game to see how member states will react — and whether the court has made an unsuccessful gamble to assert its power in an unfriendly international environment. From altitude, one might say that this historic moment underscores the tensions between international justice and national sovereignty, and highlights the delicate balance the ICC must maintain to remain a credible arbiter of global accountability. But many Israelis will simply conclude that they are a nation that dwells alone.

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