Six long months have passed since chief prosecutor Karim Khan applied to the pre-trial chamber of the International Criminal Court (ICC) for arrest warrants for IsraeliPrime Minister Benjamin Netanyahu, former Defence Minister Yoav Gallant, and three Hamas leaders, at least two of whom are now dead.
In that time, 9,000 more Palestinians in Gaza have been killed under Israel’s ferocious bombing and unrelenting starvation, with the total official death toll approaching 45,000, with The Lancet calculating it could be several times higher.
That this issue took six months for the three judges of the pre-trial chamber to decide, when the average wait is two months, is a testament to the unprecedented pressure that the highest court of international law has come under.
In contrast, it took just three weeks for the ICC to issue arrest warrants for RussianPresident Vladimir Putin and Maria Alekseyevna Lvova-Belova, the Russian commissioner for children’s rights.
The pressure on those three brave judges came exclusively from those countries that claim to be fighting for a rules-based world order.
US President Joe Biden led the attack on the ICC and international justice by instantly condemning Khan’s application as “outrageous”.
“And let me be clear: whatever this prosecutor might imply, there is no equivalence - none - between Israel and Hamas. We will always stand with Israel against threats to its security,” Biden said in May. Note that this was said before any due process had been allowed.
Little wonder that the chief prosecutor himself was to face cancellation with allegations of sexual misconduct, which are now before an external inquiry.
In more subtle attempts to knock the arrest warrants out of play, the UK, among others, initially re-argued an issue that had already been settled by the ICC regarding the court’s jurisdiction over what happens in the occupied territories. The UK argued that as a result of the Oslo Accords, signed in the 1990s but never implemented, it did not.
That argument has since been retracted by Prime Minister Keir Starmer’s government. In dropping the UK’s objection to the ICC process, a spokesperson for Starmer said, “We’ve been very clear about the importance of the rule of law and the independence of the courts both domestically and internationally.”
We shall see.
Over in the US, which is not a signatory to the Rome Statute, a bill is before Congress to pressure the ICC. The bill to sanction the court over the arrest warrants is nothing less than a crude political attempt to browbeat a judicial process, but 42 House Democrats voted in favour. The White House opposed it, and a Senate led by outgoing Democratic leader Chuck Schumer has yet to pass it.
But Senator John Thune, who will become majority leader of the Senate when Donald Trump becomes president again next year, has vowed to sanction the ICC.
“If the ICC and its prosecutor do not reverse their outrageous and unlawful actions to pursue arrest warrants against Israeli officials, the Senate should immediately pass sanctions legislation, as the House has already done on a bipartisan basis,” Thune wrote a few days ago on X (formerly Twitter).
This pressure on the three judges became almost unbearable. One of them, Romanian magistrate Iulia Motoc, asked to leave the three-judge panel on health grounds last month. She was replaced by Slovenian ICC judge Beti Hohler.
Despite all of this, these brave judges ploughed ahead and issued the arrest warrants. They are to be wholly commended because they - not the Bidens of this world - represent a rules-based order built on the supremacy of international law.
What the US has come to represent is the law of the jungle, where right and wrong are malleable, the playthings of the powerful. Nonetheless, a typical reaction to the ICC came from a Democrat, Senator John Fetterman, who posted on social media: “No standing, relevance, or path. Fuck that,” adding an emoji of the Israeli flag.
This is wholly in keeping with the US being in a minority of one, as it just cast a veto at the UN Security Council against an unconditional and immediate ceasefire in Gaza - the fourth time the US has done this in the 13-month war.
Majed Bamya, the Palestinian envoy to the UN, said in a powerful statement: “There is no right to mass killing of civilians. There is no right to starve an entire civilian population. There is no right to forcibly displace a people, and there is no right to annexation. This is what Israel is doing in Gaza. These are its war objectives. This is what the absence of a ceasefire is allowing it to continue doing.”
Shortly afterwards, Israeli warplanes carpet-bombed a residential block near Kamal Adwan hospital in besieged northern Gaza, killing at least 66 people.
The US cast its veto despite being humiliated by its ally only two days earlier. Speaking two weeks after Trump’s election victory on 5 November, Netanyahu repeatedly criticised Biden’s judgement in an address to the Israeli Knesset.
“The US had reservations and suggested that we not enter Gaza,” Netanyahu said. “It had reservations about entering Gaza City, Khan Younis, and, most critically, strongly opposed entry into Rafah.
“President Biden told me that if we go in, we will be alone,” he added. “He also said that he would stop shipments of important weapons to us. And so he did. A few days later, [US Secretary of State Antony] Blinken appeared and repeated the same things and I told him - we will fight with our nails.”
These are the dying weeks of what will go down as one of the most infamous presidencies in US history.
Biden’s weakness, when called upon to act as a true world leader, made his Republican predecessors, such as Ronald Reagan and George H W Bush, look like pillars of moral behaviour in comparison.
The bar in the hall of shame was already at an all-time low when Biden assumed office four years ago, after a Trump presidency that carefully laid all the conditions for the explosion that was to follow. But Biden managed to descend to even lower depths in his management of Israel’s war on Gaza.
One passage in the ICC judgement makes US responsibility for the carnage that has taken place in Gaza brutally clear. The chamber noted that while Israel ignored pleas from the UN Security Council, the UN secretary general, states, and governmental and civil society organisations about the humanitarian situation in Gaza, it did respond to pressure from the US.
“The Chamber also noted that decisions allowing or increasing humanitarian assistance into Gaza were often conditional,” the court noted. “They were not made to fulfil Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied with goods in need. In fact, they were a response to the pressure of the international community or requests by the United States of America. In any event, the increases in humanitarian assistance were not sufficient to improve the population’s access to essential goods.”
Netanyahu, in other words, did not just openly connect the halt in essential goods and humanitarian aid with the goals of the war; he made the supply of food conditional on the pressure he faced.
“The Chamber therefore found reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare,” the court noted.
This finding specifically makes the US a partner in Netanyahu’s crimes.
One cannot overstate the significance of the ICC’s arrest warrants. The court does not have enforcement powers. It relies on member states to arrest and surrender suspects.
These warrants thus throw down the gauntlet to each one of the 124 state parties to the Rome Statute. And the question this asks of each country, now obliged by international law to uphold and serve these warrants, is a simple one: “Do you believe in international law or the law of the jungle?”
Some countries in the Global South will have no difficulty answering a question like this one, but others will.
Specifically, it will present the greatest of challenges to the UK and all European countries that have formed the backbone of support for Israel’s onslaught on the population of Gaza and that have continually vetoed calls for an immediate ceasefire.
Britain, Germany, France and Italy have all argued that Israel has the right to continue its war on Gaza in the name of self-defence and led major campaigns domestically to criminalise protest, first as antisemitic and, lately, as terrorism.
However, the legal challenge to these countries is considerable. The ICC warrants do not just apply to the two Israeli leaders named. The warrants may trigger domestic cases against other citizens of Israel, particularly dual nationals in European countries, because the court has found that crimes have been committed.
“Anyone else involved in the commission of the crimes may be brought to justice at a domestic level but also at an international level,” Triestino Marinello, an international human rights lawyer representing Palestinian victims at the ICC, told Middle East Eye.
There is little likelihood of either Netanyahu or Gallant testing the political will of Starmer by visiting the UK or any country where these warrants could be served.
But would Starmer, as a former director of public prosecutions, allow prosecutions of British dual nationals who have participated in the crimes that the ICC has now established to have taken place in Gaza? That is a far keener test of the UK’s resolve to uphold international law.
Even if nothing happens, the warrants tighten the noose of world opinion and international law around Israel’s neck. This can only increase its global isolation.
If Netanyahu and Gallant should care to glance at the more than five dozen other defendants on the ICC’s website, they don’t make good company for Israeli leaders who consider themselves part of the western world.
There’s Omar al-Bashir, the former president of Sudan; Joseph Kony, the Ugandan leader of the Lord’s Resistance Army; Sergei Shoigu, the former Russian defence minister; and of course, Putin himself.
Instinctively, the reaction of Israel’s coalition government has been to double down. Israeli National Security Minister Itamar Ben Gvir branded the court’s decisionantisemitic from beginning to end and said Israel should respond to the ICC by announcing the annexation of the West Bank.
The incoming Trump administration may well support this, but Trump himself should stop to think it through before shooting from the hip.
Indeed, if he is true to his word to “put America first”, Trump would be wise to begin to distance himself from the reckless actions of a pariah state. Otherwise, he might simply be following Biden’s geriatric example in allowing Israel to drag the US down with it into the gutter.
Trump, the arch-pragmatist, must see that if he allows Israel to attack Iran, annex the West Bank and reoccupy Gaza, then he can forget about all the lucrative trade and real-estate deals he salivates about in the reconstruction of the region.
From now on, unless it is tamed in a way that Biden was incapable of doing, Israel can only weaken Washington’s global commercial and military reach. It cannot enhance it, let alone act as a pillar of it.
Israel has become a bad commercial bet for its American partner.
Despite all the evangelical braggadocio and the money from Miriam Adelson, the Israeli-American billionaire behind his presidential campaign, I very much doubt that the ultra-secular and ultra-transactional Trump cannot already see this.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.