When the International Criminal Court (ICC) in The Hague issued arrest warrants against Israeli Prime Minister Benjamin ‘Bibi’ Netanyahu and former defence minister Yoav Gallant over war crimes recently, the top of the mind question was whether they were enforceable.
Israel is not a signatory to the Rome Statute, the founding treaty of the ICC that outlines the court’s structure and jurisdiction, and has vehemently contested the court’s remit.
Netanyahu’s mindless, relentless and remorseless retribution against Hamas following the ghastly mass murder of over 1,000 Israelis last year has left nearly 45,000 people in Gaza dead, many of them women and children, over 1 lakh injured, and inflicted immeasurable pain on many more. While the prime minister labelled the ICC judges as anti-Semites, there can be no justification for the colossal collateral damage in Gaza.
Several major world powers including the US, China, Russia, and India are not members of the ICC, which means the warrantees can travel to these countries safely. ICC doesn’t have a police force on its own and, hence, the onus of making the arrest lies with 124 countries that are signatories to the Rome Statute, should Netanyahu and Gallant make themselves available to be captured.
Besides, not all ICC member states bother to implement the ICC’s fiat against someone as powerful as Netanyahu, one of the most protected heads of state with diplomatic immunity, even if they get the chance.
When Russian President Vladimir Putin -- against whom an ICC arrest warrant is pending since March 2023 -- visited Mongolia in September this year, he was accorded a red-carpet welcome.
There were calls to prosecute Mongolia, an ICC member, for its failure to honour its obligations. A panel of ICC judges reviewed the case, found Mongolia to have wilfully neglected its ICC obligations, and referred the matter to its oversight body known as Assembly of State Parties to consider the possible punishment: a censure.
While Mongolia, which has strong trade ties with Russia, put its economic and diplomatic interests over its legal obligations as an ICC member, South Africa managed to avoid a similar situation in August 2023 as it persuaded the Russian leader not to attend the BRICS summit in Johannesburg.
In the past, South Africa had hosted Omar al-Bashir, former president of Sudan wanted by the ICC, and was reprimanded for the infraction. In that context, Putin’s cancelling the South Africa visit in 2023 was seen as a small win for the ICC because it stopped him from travelling to a member state.
In Netanyahu’s case, the reactions have been strong and polarised: US President Joe Biden called the warrants outrageous; Italy questioned the feasibility of the arrest warrants saying it will be difficult to execute; France, a day after it brokered a ceasefire between Israel and Hezbollah in Lebanon, nuanced its stance saying Bibi and Gallant have immunity from arrest because Israel is not an ICC member.
Those who supported the ICC’s move include Hamas and Iran, whose supreme leader Ayatollah Ali Khamenei said the Israeli PM should have been handed a death sentence. Among Western countries, Belgium, Canada, the UK and Ireland agreed with the ICC. If the two Israeli leaders travel to these countries, they may face the prospect of being arrested and sent to the ICC’s detention centre in The Hague.
Making starvation an instrument of warfare
The arrest warrants against Netanyahu, Gallant, and Deif were issued by a three-judge panel known as Pre-Trial Chamber I.
The judges – Nicolas Guillou, Reine Alapini-Gansou, and Beti Hohler – said there were reasonable grounds to believe that Netanyahu and Gallant intentionally deprived civilians in Gaza of food, water, and medicines as well as fuel and electricity. This act, according to the ICC judges, amounted to using starvation as a method of warfare.
“The Chamber found that there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration. On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met,” it said.
It also found that doctors in Gaza were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics. Doctors were “forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering. This amounts to the crime against humanity of other inhumane acts,” it said.
Why the arrest warrants matter
That the ICC decided to go after one of the closest allies of the US is considered a bold step. The warrants were issued on November 21, based on an application moved by ICC prosecutor Karim Asad Ahmad Khan six months ago charging the duo with war crimes. A similar warrant to arrest Hamas military leader Mohammed Diab Ibrahim Al-Masri, better known as Deif, also went out at the instance of Khan.
The charges against Netanyahu and Gallant include weaponising starvation as an instrument of warfare, while Deif was charged with murder, torture, taking hostages, rape and other forms of sexual violence. There is a question mark over the status of Deif, as Israel claims he was killed in one of its targeted strikes.
In his application to ICC judges filed on May 20, Khan had also sought arrest warrants against two other Hamas leaders — Yahya Sinwar and Ismail Haniyeh — but later withdrew them after evidence emerged confirming their deaths. Hamas is yet to confirm Deif’s death.
The ICC’s warrants also cast a shadow over Israel’s legal system because the court gets involved only when it is convinced the accused will not be tried in their home country.
This is the first time it is trying to get a democratically elected leader arrested. Till now, the ICC had trained its guns on authoritarian, non-Western leaders, leaving the impression that it was a pro-West setup. Taking on Israel’s prime minister gives the court an opportunity to try to change that notion.
The action comes amid a separate, ongoing case before the International Court of Justice (ICJ), which is also based in The Hague, brought forward by South Africa acccusing Israel of committing genocide in Gaza.
ICC’s powers
Netanyahu had earlier contested ICC’s territorial jurisdiction. However, ICC judges rejected the challenge and decided to move ahead saying Palestine is a signatory. Israel has now put the ICC on notice saying it was moving an appeal against the arrest warrants, which should be put in abeyance till the appeal is disposed of. The ICC’s response is awaited.
Established by the Rome Statute of 1998, the ICC began sittings on July 1, 2002 after 60 countries ratified it. Now, 124 countries are signatories to the Rome Statute – 33 African states, 19 from Asia-Pacific, 19 from Eastern Europe, 28 are from Latin American and Caribbean states, and 25 are from Western European and other states. From India’s neighbourhood, only Bangladesh and Afghanistan figure on the list.
As an international court of last resort, the ICC prosecutes cases of genocide, war crimes, crimes against humanity, and the crime of aggression. According to ICC’s statute, it can only complement national criminal systems, not replace them. It prosecutes cases only when the states concerned are unwilling or unable to do so.
ICC issues arrest warrants to ensure the person’s appearance at trial and to prevent him or her from continuing to commit the crime in question. ICC judges have time and again clarified that its warrants prevail over immunity from arrest granted to heads of state under other international laws, though this view is not shared by all member states.
According to the ICC Statute, no trial can take place without the accused being physically present in the courtroom.
Article 63 (1) of the Rome Statute of the International Criminal Court clearly states: “The accused shall be present during the trial.”
The only exception is if and when an accused tries to obstruct proceedings and needs to be removed from the courtroom.
Serious charges
The present case arose after Palestine, which accepted the jurisdiction of ICC in January 2015, referred the situation in the country since June 3, 2014 to the ICC prosecutor. The prosecutor investigated the scope of prosecution and in 2019 decided it meets the criteria under the Rome Statute.
On November 17, 2023, the prosecutor received further referrals on the situation in Palestine from Bangladesh, Bolivia, Comoros, Djibouti and South Africa. Chile and Mexico also joined the referral list on January 18, 2024. In May, the prosecutor filed applications for warrants of arrest in Pre-Trial Chamber 1.
Warrant as deterrent
The ICC’s decisions are ‘permanent and unyielding’ because there is no higher court to appeal. This essentially means, unless Netanyahu and Gallant prove their side of the case before the ICC, they will for the rest of their lives remain as international fugitives wanted in 124 countries.
However, the United Nations Security Council can defer proceedings at the ICC for one year at a time, which can be renewed. The caveat is that the deferral requires approval of nine of 15 Council members and no veto by any of the P5 members.
Whether ICC’s arrest warrants are enforceable is moot. But on the upside, it may force Israel’s allies to tighten their war funding and Netanyahu to pipe down his reckless retribution in Gaza and elsewhere.
