Implications of the ICC Arrest Warrants against Netanyahu and Gallant

Context for the Warrants

In accordance with the legal procedures of the Rome Statute, the ICC opened the door to submission of entries and observations by member states and legal experts. This includes their comments and opinions on the requests submitted by the Prosecution, on the Court’s jurisdiction, and on the context of the war on the Gaza Strip and the crimes committed therein. Israel submitted requests challenging the Court’s jurisdiction, for the Court to provide a new notification of the initiation of an investigation to its authorities, and for the Chamber to halt any proceedings before the Court in the relevant situation, including the consideration of the applications for warrants of arrest.

The ICC Decision

In the first decision, the Chamber ruled that Israel’s acceptance of the court’s jurisdiction was not a requirement, since the Court has the power to exercise its jurisdiction on the basis of the territorial jurisdiction of Palestine, a state party to the ICC, in whose territory the crimes falling within the jurisdiction are committed. The second decision noted that the Prosecution had already notified Israel of the initiation of the investigation in 2021, and therefore there was no need for Israel to be re-notified of the measures taken, or any reason to suspend the application for arrest warrants.

Legal Implications

The ICC decisions are a precedent in the history of justice for the Palestinians, accompanied by many legal implications, most importantly:

The Court’s decision obliges all 124 States Parties to the ICC to implement the arrest warrants in accordance with subsequent legal obligations, according to the Rome Statute’s stipulations on the extradition of wanted persons when present on its territory.
The arrest warrants accuse Netanyahu and Gallant of committing extremely serious crimes. The Israeli occupation has weaponized starvation against civilians in the Gaza Strip, depriving them of water, food, medicine, fuel, electricity, and other necessities of life; even making the entry of aid conditional, in violation of the rules of international humanitarian law. The Court accused Netanyahu and Gallant of bearing responsibility for directing widespread attacks against civilians during the military aggression.
The issuance of the arrest warrants has opened the possibility of bringing other officials from the Israeli leadership at the political and security levels before the International Criminal Court; The Prosecutor’s request for the arrest warrants indicated that “My Office will not hesitate to submit further applications for warrants of arrest if and when we consider that the threshold of a realistic prospect of conviction has been met.” It stressed that “underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity. Nothing can justify wilfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.”
The decision also paves the way to adapting this decision to support the accusation of genocide during future trials, whether before the court itself or the International Court of Justice (ICJ). The court indicated in its comments that there are reasonable grounds to believe that the lack of food, water, electricity, fuel, and specific medical supplies has created living conditions that could lead to the destruction of part of the civilian population in Gaza, resulting in the death of civilians, including children, due to malnutrition and dehydration. The reference to the intent to “destroy part of the civilian population in Gaza” is a fundamental element in describing the crime of genocide, according to the Rome Statute, article (6) of which defines “genocide” as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Political Implications

The Court’s decision has important political implications, including:

Restricting the freedom of movement of persons subject to the warrants, which will harm Netanyahu in particular, having now lost the ability to move within the member states of the ICC, especially countries in the European Union. A breach of a member state’s obligations before the court, regarding arrest and surrender under the Charter, will result in referring them to the Assembly of States Parties (the highest legislative and oversight body of the ICC), which may decide to refer the state to the Security Council. In addition, failure to comply entails moral responsibility in the event of supporting and receiving persons accused of committing war crimes and crimes against humanity from democratic countries that respect human rights.
Restricting the transfer of weapons to Israel, as Netanyahu and Gallant represent the top echelons of the Israeli occupation. This means that supplying them with weapons puts the state in a difficult political and legal position, because it cannot claim that Israel is using the weapons in a manner appropriate and consistent with the rules of international humanitarian law. In addition, there is a possibility that supplying Israel with weapons could be interpreted as allowing their use in committing the alleged crimes. This could open these countries up to being held accountable for individual criminal complicity in such crimes on the basis of Article 25/3.(a), which states that “-In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: […] (a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.”
Expanding the international isolation of the Israeli government; the two Israeli cases in the international judicial system in its two aspects – the charge of genocide at the ICJ, and charges of individual criminal responsibility before the ICC – will put the regimes that support it in an embarrassing public position. This will be most evident in Europe, where the European judiciary enjoys great strength and independence with regard to human rights, and is considered a reference in this regard, in addition to the fact that European politicians are afraid to appear before it.
There is a possibility that the ICC decision will reign in Israeli aggression in the Gaza Strip and Lebanon; the severity of the crimes committed increases with the continuation of the war and magnifies the criminal accountability of Israel as a state and the individuals being tried.
The possibility of holding Israel accountable for the crime of genocide before the International Court of Justice; The analysis of the first preliminary Chamber of the ICC indicates that the conditions created by the Israeli leadership during the military aggression on the Gaza Strip constitute the destruction of part of the civilian population in Gaza, which in itself establishes the essence of the crime of genocide. It also indicates that the Office of the Prosecutor arrived at this this conviction initially in requesting arrest warrants, as did the Chamber later by ruling to issue arrest requests. These judges are among the most important international criminal experts, which will contribute to facilitating a conviction at the ICJ regarding South Africa’s case against Israel for violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. In addition to this, the ICJ can benefit from the materials used by the International Criminal Court and the Office of the Prosecutor to issue these decisions.

How Might Israel Bypass the ICC Decision?

The Israeli occupation authorities may attempt to circumvent the court’s decisions by resorting to the following measures:

Using the principle of complementarity as a pretext; It may claim the original jurisdiction of the “Israeli” national courts, but the Charter stipulates in Article (17) that Israel must be willing and able to prosecute to examine its seriousness. Thus, this principle cannot be invoked in Netanyahu’s case as it will contribute to the inclusion of other criminal cases related to corruption and bribery, if his immunity is dropped domestically.
Attempting to take advantage of the loopholes in the Charter within Article (98) related to cooperation regarding waiving immunity and agreeing to submit the required documents to the court, by concluding bilateral agreements with the member states of the court to avoid handing over the accused. Article (98/2) states that “The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.” However, should Israel resort to such bilateral agreements, they will have difficulty gaining legitimacy before the national judicial systems of the States Parties, especially the European ones, given that it will be understood that their purpose is to protect criminals wanted by international justice.
To avoid arrest, Netanyahu and Gallant, as well as any others against whom arrest warrants may be issued in the future, will avoid travel to any of the States Parties to the Court.

Conclusion

The ICC’s arrest warrants against Netanyahu and Gallant set a qualitative precedent in the history of international judicial practice; no international judicial body has ever issued criminal rulings at this level against a Western country or major ally. The scale of the atrocities committed in the Gaza Strip has put the international judicial system to a real test regarding the values it claims to defend. Despite the enormous pressures that the Court and its judges have been subject to, it was able to reach these decisions. The courage of the international judicial system to end the state of impunity enjoyed by the Israeli occupation authorities will expand of the scope of litigation; extending to seeking criminal accountability for soldiers who participated in the onslaught against Gaza of different nationalities before their national judiciary. This will undermine the status and reputation of Israel, which has always presented itself as a victim of genocide, while committing the same crime against the Palestinians.