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| Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant in Tel Aviv on October 28, 2023. (Abir Sultan/AFP) |
ICC warrants put spotlight on Israel and its U.S. defendersJudging by the American reaction, you would think the International Criminal Court was based in Beijing or Moscow. On Thursday, a set of judges at the ICC, which is headquartered in The Hague, the administrative capital of the Netherlands, issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defense minister Yoav Gallant for “crimes against humanity and war crimes” over Israel’s military operations in the Gaza Strip. They also issued an arrest warrant for Mohammed Deif, Hamas military leader in Gaza; he is believed dead since July, but, without being able to verify whether he was killed, the ICC chamber proceeded with the warrant. The move follows some six months of deliberations after an application made by the court’s chief prosecutor, Karim Khan, in May. As my colleagues reported, the court said it found “reasonable grounds” to believe Netanyahu and Gallant bore responsibility for crimes including the use of starvation as a method of war and for “murder, persecution, and other inhumane acts.” Khan argued that there was clear evidence to demonstrate the Israeli ministers had presided over a policy that “systematically deprived the civilian population of Gaza of objects indispensable to human survival.”
Israeli officials and lawmakers from across the political spectrum, including Netanyahu and Gallant themselves, denounced the warrants as the workings of the “enemy of humanity,” proof of an international system brimming with “bias” and “antisemitism,” and interference in Israel’s pursuit of a just war in the wake of Hamas’s terrorist strike last October. In Washington, their indignation and fury was echoed. The Biden administration said it “fundamentally rejects” the ICC’s decision, and questioned the ICC’s jurisdiction in the matter. President Joe Biden called the warrants “outrageous.” Republican lawmakers were more blunt in their criticism: Sen. Tom Cotton (R-Arkansas) lambasted the U.N.-forged entity as a “kangaroo court” and labeled Khan a “deranged fanatic,” warning in a social media post that Congress would take punitive measures against the ICC. Sen. Lindsey Graham (R-South Carolina) said the ICC was a “dangerous joke” and called for U.S. sanctions on the body and its members. Rep. Mike Waltz (R-Florida), tapped to be President-elect Donald Trump’s national security adviser, said the incoming administration would be mustering a “strong response” to both the ICC and the United Nations come January. Israel and the United States are not parties to the Rome statute upon which the court is based. But 124 other states are, and are therefore required to abide by the court’s decisions. The Palestinians joined the ICC in 2015; the court therefore can have jurisdiction over alleged crimes that take place in the occupied Palestinian territories. After the news broke, myriad Western countries — including stalwart U.S. and Israeli allies — called for the court’s ruling to be respected, while some confirmed they would enforce the warrants should Netanyahu or Gallant appear in their national jurisdictions. “We are one of the founding members of the International Criminal Court and the International Court of Justice,” Canadian prime minister Justin Trudeau told reporters. “We stand up for international law and we will abide by all the regulations and rulings of the international courts.” Caspar Veldkamp, Dutch foreign minister, said authorities would arrest Netanyahu if he “sets foot on Dutch soil.” A spokesperson for the French foreign ministry said France supports “the action of the prosecutor of the court, which acts fully independently,” and reiterated earlier statements arguing that the court’s work was essential in “the fight against impunity.” Netanyahu will still be welcome in the United States, but would have to think carefully about embarking on journeys that could risk an emergency stop in a European country. It marks a humbling moment for Israel on the world stage. “This is in effect the partial reverse of normalization,” noted Andrew Miller, a former U.S. State Department official tasked with Israeli-Palestinian affairs. “Instead of Israeli officials and citizens traveling and doing business in more countries, the Prime Minister and former Defense Minister will be unable to visit countries that have recognized Israel for decades.” Netanyahu joins an ignominious list of leaders pursued by the ICC that includes Sudan’s Omar al-Bashir, Libya’s late leader Moammar Gaddafi, and Serbia’s Slobodan Milosevic and Russian President Vladimir Putin. In the case of the latter, there’s little confidence the Russian leader will ever make it to trial in The Hague. But the court’s issuance of a warrant for his arrest in the wake of the Kremlin’s invasion of Ukraine has curbed Putin’s travel. It also received full-throated support from the Biden administration and Republican senators. Graham, who scoffed at Thursday’s decision, celebrated the ICC’s case against Putin as the “action of an international evidence-based body that will stand the test of history.” The double standard is too hard to ignore. Oona Hathaway, a professor of international law at Yale Law School, urged the Biden administration to compel Israel to open its own investigations into the conduct of its war efforts, rather than to take out its ire on the ICC. “Sanctioning the court and its officials would send a clear message: the United States’ commitment to international justice is not principled but purely political,” she wrote in Foreign Affairs in May after Khan applied for the arrest warrants. Even then, as Hathaway noted, the Biden administration couldn’t pretend that the charges, especially those centered on forced starvation, were baseless. Agencies within the Biden administration have assessed on multiple occasions that Israel was not doing enough to allow aid into war-stricken Gaza or deliberately stymieing its flow. The United States has remained steadfast in its support of the Israeli war effort, even as Gaza has been largely destroyed, the Palestinian death toll has soared and U.N. officials repeatedly warn of famine-like conditions across the territory. The ICC’s warrants sharpen the focus on that perceived complicity. “This, to me, very clearly implies that any material or diplomatic support of Israel’s war in Gaza risks supporting ongoing war crimes and crimes against humanity,” Janina Dill, professor of global security at the University of Oxford, told my colleagues. “It should become clearer and clearer to states that supporting this war is basically taking a strong stance against international law.”The incoming Trump administration and its Israeli allies may see the warrants as evidence, instead, of the illegitimacy of bodies like the United Nations and its affiliated entities. But some commentators in Israel fear the moment may mark a grim turning point on the world stage. “As uncomfortable as many Israelis feel seeing Israeli leaders accused of international crimes, not enough questions are being asked about what could have been done differently,” wrote Israeli legal scholar Aeyal Gross. “Could Israel have avoided the ruling if its policies regarding targets and allowing humanitarian aid into Gaza — as well as many other decisions taken after October 7 — were different?” | ||||||