ICC arrest warrants: Binyamin Netanyahu's world has 'shrunk considerably'

Arrest warrants issued by the International Criminal Court on Thursday for Israeli Prime Minister Binyamin Netanyahu, former Israeli defence minister Yoav Gallant and Hamas military chief Mohammed Deif mark a "historic moment" in the history of the court, according to international law specialist Johann Soufi.

FRANCE24/AFP
Issued on: 22/11/2024 
By:  Marc DAOU

Israeli Prime Minister Binyamin Netanyahu speaks at a press conference in Jerusalem on September 4, 2024. © Abir Sultan, AFP


The International Criminal Court (ICC) earned Israel’s ire with its controversial decision to issue arrest warrants for Prime Minister Binyamin Netanyahu and former defence minister Yoav Gallant for crimes allegedly committed in the Gaza Strip as part of the Israeli offensive in response to the deadly Hamas attacks of October 7, 2023.

The ICC said in its statement there were “reasonable grounds to believe” that Netanyahu and Gallant had committed war crimes and crimes against humanity, notably by “using starvation as a method of warfare” and “intentionally” targeting civilians. Hamas military chief Mohammad Deif, for his part, was accused of committing crimes against humanity including murder, torture and rape.

Netanyahu immediately rejected the ICC decision against him and Gallant as "anti-Semitic".

Israel "rejects with disgust the absurd and false actions and accusations made against it", Netanyahu said, accusing the ICC judges of being "driven by anti-Semitic hatred of Israel" and calling the decision a "modern-day Dreyfus trial" – a reference to the infamous 1894 trial of French Jewish army captain Alfred Dreyfus, who was wrongly convicted of treason and who has now become a symbol of anti-Semitic injustice.

Israel and the United States are not signatories to the Rome Statute that established the ICC and do not recognise the court’s jurisdiction. But the Israeli leader’s movements and those of his former defence minister are now effectively restricted, with each of the court's 124 member states theoretically obliged to arrest the men if they arrive on member territory.

While the ICC has no police force to enforce its warrants and instead relies on the goodwill of its member states to respect its decisions, EU top diplomat Josep Borrell quickly said the arrest warrants must be respected and implemented (all 27 EU states are ICC members).

So far, France, Italy, Ireland, Belgium and the Netherlands have indicated they would respect the ICC ruling and move to arrest the men if they were to arrive on their soil. Italy's Defence Minister Guido Crosetto said that although he felt it was "wrong" to equate Netanyahu and Gallant with Hamas, "we would have to arrest them" if they were to enter Italy.

According to some international law specialists, the ICC has made a landmark decision with these warrants. For international lawyer Johann Soufi, an ICC specialist and former head of the legal department of the UN Agency for Palestinian Refugees in Gaza (2020 and 2023), these decisions mark a "historic moment" for the court.

FRANCE 24: How important is this ICC move?

Johann Soufi: By issuing these warrants, the ICC has responded to the hopes of victims, but also to all those who believe in international justice. The decision is not a surprise, however, because it conforms to the legal conclusions of most international law specialists, who describe both the Israeli operations in the Gaza Strip and the West Bank, and the Hamas attack of October 7, as violations of international humanitarian law and crimes under the ICC statute. This ICC prosecutor, Karim Khan, had come to the same conclusion when he asked the court’s judges to issue these arrest warrants six months ago.

These accusations reflect the gravity of the crimes committed in Gaza, documented daily by residents, humanitarian organisations on the ground and experts responsible for assessing such violations. More and more experts are going even further in their legal conclusions, now qualifying certain acts as genocide – notably Francesca Albanese, the special rapporteur on human rights in the occupied Palestinian territories, and the UN Special Committee charged with investigating Israeli practices in the occupied territories.

Is it a landmark decision?

Yes, I believe this is a historic moment for the ICC that will ultimately help strengthen its legitimacy. Since its creation, the court has often been accused of being a political instrument, incapable of taking on the powerful. It must be acknowledged that for nearly 20 years all of those prosecuted were African officials, most of them mid-level.

A first turning point came in 2023, when the ICC issued an arrest warrant for Russian officials, including President Vladimir Putin, for crimes committed in Ukraine. This was the first time the court had brought charges against the leader of a major power, and one with nuclear weapons. However, the criticisms have continued, including that the court has been used in the service of Western powers and that it is unable to investigate their own crimes or those committed by their allies, like in Afghanistan or Palestine.

These objections have gained in intensity in recent months, in the face of what was seen as the court’s silence regarding alleged crimes committed in Gaza. These prosecutions were eagerly anticipated, notably by countries of the Global South such as Mexico, Chile or South Africa.

The decision is also historic because the court has shown that all individuals – whether powerful or not, whether close to or distant from Western interests – must answer for their actions when they commit crimes that offend our collective conscience.

It demonstrates that all individuals are equal under international law and in international jurisdictions, whether they are the perpetrators of crime or its victims.
Netanyahu reacted fiercely to the arrest warrant, calling the court "anti-Semitic". Are the ICC magistrates politicised?

No, that is not the case. It is common, even systematic, for individuals prosecuted for international crimes to criticise and denigrate the jurisdiction that implicated them. Netanyahu's attacks on the court, and more broadly against any international entity denouncing the criminal nature of what is currently happening in Gaza, are part of this logic.

The ICC has demonstrated, over the years, that it knows how to remain independent and impartial. It is precisely this independence and impartiality that the parties to the Rome Statute – as well as victims and, more generally, the international community – demand of it.
Is it realistic to imagine that one day Netanyahu or Gallant will appear before the ICC, since Israel has not ratified the Rome Statute? Might a member state really take it upon itself to arrest them?

That is a wager on the future. And my professional experience has taught me that the reality of one day is not always that of the next. Today – and this also applies to Vladimir Putin – the probability that these two Israeli officials will be arrested seems low. However, one thing is certain: Binyamin Netanyahu’s world has just shrunk considerably. Now, 124 member states have a legal obligation to arrest him if he sets foot on their territory.

France and the Netherlands, for example, have already affirmed their willingness to cooperate fully with the court and to implement these arrest warrants if the opportunity arises. I am hopeful that other states will adopt a similar position, in line with their international commitments. Signing the Rome Statute means committing to respect it; this is the very foundation of international law.
So is the credibility of international law at stake here?

Yes, because international law is based, above all, on the willingness of states to respect and implement it. It is a constant battle, where every obstacle contributes to weakening it.

For example take Mongolia, which failed to meet its obligations to arrest him when Putin visited last September. This failure undoubtedly weakened the ICC.

But beyond that, it is above all the credibility of the states themselves that is at stake. When a state violates international law, which it has committed to respecting, it inevitably loses political credibility and contributes to global insecurity. The entire question is whether we want to pursue a world that is based on law or one based on force.

This article was translated from the original in French by Khatya Chhor.


Would Netanyahu be arrested in Germany?

Jens Thurau

11/22/2024  

DW

Germany says it is "examining" its possible response to the ICC arrest warrant against Israel's Prime Minister Benjamin Netanyahu. Germany supports the ICC, but is also committed to its special relationship with Israel.


The German minority government made up of the Social Democratic Party (SPD) and the Greens would definitely have preferred to avoid the issue, even if officials should have seen it coming a long time ago: The International Criminal Court in The Hague issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former Defense Minister Yoav Gallant. The court said it had found sufficient evidence that both were complicit in crimes against humanity and war crimes as part of Israel's ongoing offensive in Gaza. The military campaign began after Gaza-based group Hamas' October 7, 2023, attack on Israel. An arrest warrant was also issued for Hamas military leader Mohammed Deif with the same charges, even though Israel says it killed Deif in July.

Germany is regarded as one of the biggest supporters of the International Criminal Court in The Hague, which began its activities in July 2002 and is supported by 124 states. However, it does not include globally important states such as the US or Russia.

What is important in the current case is that the court has no means of enforcing the arrest warrants itself. Member states — including Germany — are formally obliged to take wanted persons into custody should they cross their borders.

But there is also Germany's historic responsibility towards Israel. This is why Germany's reactions to the decision in The Hague have been mixed. Speaking on ARD television from the climate conference in Baku, Foreign Minister Annalena Baerbock (Greens) was the first to react. "We abide by the law at the national, European, and international level," she said. "And that is why we are now examining exactly what this means for us in terms of its international application."

A short time later, the German government followed this up with a press release stating: "The German government has acknowledged the decision of the International Criminal Court (ICC) to request arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant."

As in Baerbock's statement, the word "examination" appears here, too, which is what the government now plans to carry out. And it goes on to say: "Further action will be taken only once Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant are expected to visit Germany."

No imminent plans for a Netanyahu visit

Netanyahu was last in Germany around a year and a half ago. And on Friday, other German government politicians stressed, almost with relief, that a visit was not to be expected in the foreseeable future.

The last time Israel's head of government was in Berlin for political talks was in March 2023, a good six months before the murderous attack on Israel by Hamas on October 7. Hamas is a militant Palestinian group. The European Union, as well as the US, Germany and other countries, have listed it as a terrorist organization.

Israel is one of the 10 countries with which Germany holds intergovernmental consultations: Meetings in which all members of each country's cabinet get together. The purpose of this is to emphasize the special bilateral relationship between the countries. The first such meeting took place in Jerusalem in 2008 under then-Chancellor Angela Merkel (CDU), and the last was in October 2018.

Government spokesman finds it difficult to imagine an arrest

How does the German government intend to handle the ruling? This is what many journalists wanted to know at a recent press conference.

In response to a question about the conflict between the ruling of the ICC and showing solidarity with Israel, government spokesman Steffen Hebestreit said: "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 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."

While the federal government struggles to find a clear position between its support for Israel and its support for the ICC, other German politicians have had fewer qualms.

For example, Boris Rhein (CDU), who heads the government of the German state of Hesse, called the arrest warrants "absurd" on Friday. Rhein added that Israel has been at war for more than a year, a war that the terrorist organization Hamas unleashed with its attack on innocent citizens. "For me, it is completely out of the question that a democratically elected prime minister from Israel would be arrested on German soil for defending his country against terrorists," Rhein said.

But Rhein also knows that it is currently difficult to imagine Netanyahu visiting Germany.

This article was originally written in German.


Jens Thurau  is a senior political correspondent covering Germany's environment and climate policies.