The ICC’s arrest warrants for Benjamin Netanyahu and Yoav Gallant expose the fault-line running through international law
Ihab Shalbak
5.12.2024
The International Court of Justice in The Hague, Netherlands. (Photo by Michel Porro / Getty Images)
In May, the International Criminal Court prosecutor, Karim Khan, applied for arrest warrants for the Israeli PM Benjamin Netanyahu, Defence Minister Yoav Gallant and three Hamas leaders. The court has now issued those orders — but to what effect?
For more than a year, observers of the unfolding atrocities against Palestinians in Gaza have expressed frustration at the seeming lack of action from the International Criminal Court (ICC). Palestinian-Dutch political analyst Mouin Rabbani was one of those who argued that the ICC was either unwilling or unable to issue arrest warrants for Israeli officials. According to Rabbani, the current chief prosecutor of the ICC, Karim Khan was chosen in 2021 precisely to prevent any serious questioning of Israeli practices in the Occupied Palestinian Territories.
In a 2021 letter to the Conservative Friends of Israel, former British Prime Minister Boris Johnson deemed Khan’s appointment a harbinger of “positive change”, while stressing “we oppose the ICC’s investigation into war crimes in Palestine”. The top Israeli Knesset member with responsibility for ICC affairs, Michal Cotler-Wunsh, said that Khan’s appointment “harbors the potential for the ICC to fulfill its important mission — to uphold, promote, and protect the rights of all those needing its representation as a court of last resort”.
With such warm endorsements from the likes of Boris Johnson and Michal Cotler-Wunsh, Rabbani had valid reason to doubt the chief prosecutor’s willingness and ability to hold Israeli leaders accountable for war-crimes. In fact, in May 2024, Khan filed applications for arrest warrants for the Israeli Prime Minister Benjamin Netanyahu and his then-Defence Minister, Yoav Gallant, along with three Hamas leaders. When, six months later, on 23 November, the Court’s pre-trial chamber finally issued the warrants, Rabbani expressed his unreserved delight at being “proven wrong”. Israel’s conduct, combined with public calls on the ICC to uphold its duties, left the prosecutor “with no alternative”, Rabbani argued.
Indeed, after fourteen months of Israeli atrocities in Gaza, placating and appeasing powerful patrons become an untenable task because the very norms that sustained the court and, by extension, international law were at stake. In response to Khan’s request for warrants, twelve US senators threatened Khan personally with sanctions if he pursued the case against Netanyahu and his defence minister. In Israeli eyes, Khan went from “showing care and concern for victims of human rights” to presiding over, in the words of Netanyahu’s office, “an antisemitic decision … equivalent to the modern Dreyfus trial”.
The delight of Rabbani was not shared by the traditional self-appointed upholders of legality and international law. Western leaders were either evasive about implementing the arrest warrants or categorically decreed the ICC’s decision to be “outrageous”. US Senator Lindsey Graham went further by threatening to “crush the economy” of any allied country that aids the ICC to execute the arrest warrants.
It can be said, then, that the reactions to the ICC arrest warrants are expressions of an established pattern according to which, as the late Palestinian poet Mahmoud Darwish once wrote, referring to the Palestinian refugee camps that were home to those expelled from Palestine in 1948, “when the camp smiles — the grand cities scowl”. In the realm of law, there have been a number of legal developments that should have given those in the camps reason to smile. Along with the ICC arrest warrants, the International Court of Justice (ICJ) issued two landmark decisions in 2024: on 26 January, the ICJ found that Israel’s conduct in Gaza was plausibly genocidal; and, on 19 July, the court issued a historical Advisory Opinion declaring that “Israel’s occupation of the Gaza strip and the West Bank, including East Jerusalem … along with the associated settlement regime, annexation and use of natural resources” is unlawful. These legal developments gave validity to Palestinian claims against Israel — with the attendant delight and smiles that come with the acknowledgement of one’s own pain and suffering by others.
However, what Darwish called the “grand cities” have constantly thwarted the evolution of that delight into tangible measures to protect the Palestinian population in Gaza — and redeem “humanity” in the process. When it comes to investigating Israeli actions and interrogating Israeli officials, Khan, the ICC and international law by extension have appeared to overplay their hands and exceed their mandate.
The unravelling of international law
It was the end of the Cold War in the 1990s that stimulated the emergence of an international “juridical field” that involved the institutionalisation of international law through mechanism like the Rome Statute of the ICC. The notion of international law as the “Gentle Civilizer of Nations” was enlisted to provide an aspirational egalitarian gloss over a world divided by entrenched inequalities of power. Formal equality before the law provided an ideal that some hoped would be transformed into a more substantive equality between and within nations.
In a recent article in Arabic, the Lebanese academic and writer Wissam Saade described the aspirational egalitarian gloss as a process of taltif, a word that could denote assuagement, mitigation and softening. The first meaning lends itself to the possible ideological function of international law, the second to its potential pragmatic use against the excesses of the powerful, and the third to softening the actuality of domination. Saadi warns against considering the arrest warrants against Israeli officials as a moral and symbolic victory. For Saadi, the polyvalent taltif function that international law has represented in the past few decades is unravelling. The failure to mitigate the effects of Israel’s war on Gaza and Lebanon has impaired both the ideological and promissory function of international law, leaving it incapable of softening the blows of domination.
Before its unravelling, the taltif function of international law brought Israel under increasing scrutiny. In the “civilised” company of international lawyers, Israel traditionally emphasised its regional civilisational superiority as “a villa in the jungle” — its unique status among lawless barbarians. However, Israel’s own internal ethno-religious supremacy as a Jewish state came to appear anachronistic as international law adopted the language of human rights. A string of reports by Amnesty international, Human Rights Watch and Btselem substantiated Palestinian claims that Israel is an apartheid state.
The primacy of international legal vocabularies from the early 1990s made the bifurcated nature of the State of Israel starkly visible to the naked eye. In a visit to the West Bank, the African American writer Ta-Nehisi Coates, who once considered Israel as a model of reparations for slavery, was struck by its resemblance to the Jim Crow regime in the American South. A “bifurcated state”, Columbia University academic Mahmood Mamdani reminds us, is not a product of a primordial or cultural conflicts — rather, it is a consequence of particular forms of modern state-formation. The bifurcated state tries forcibly to privilege segments of its population to the detriment of others.
“The bounds of legitimacy”
In a post-apartheid/post-Cold War world, Israel appeared to deviate from the normative precepts of a world order formally underpinned by the egalitarianism of international law and the universality of human rights.
Even so, Israel insists that its policies and practices, far from being at odds with international law, are in fact “creative and original interpretation(s)” of it in a lawless region of the world. Israel’s leading military lawyers argued in 2009 that “International law progresses through violations”, noting that they had invented “the targeted assassination thesis” — and while, “at first there were protrusions that made it hard to insert easily into the legal moulds”, it had since entered “the center of the bounds of legitimacy”.
In this Israeli narrative, there is no room for assuagement or mitigation. International law in the Middle East must accompany force as it deals a softening blow to an “enemy that understood only the language of force”.
In an editorial, the liberal Washington Post made clear the proposition that Israel’s violations of the law cannot, by definition, fall foul of international law. It complained that:
the ICC is putting the elected leaders of a democratic country with its own independent judiciary in the same category as dictators and authoritarians who kill with impunity.
Following this logic, states should not be judged by their actions but rather by their self-referential affiliation with democracy. For the Washington Post, democratic countries should not be subject to the universality of the law on par with authoritarian states. The fable of righteous democracy serves as the line that divides those who can wield the force of the law from those who are subjected to it. Just as we were once told that democracy is licensed to engage in torture during the “War on Terror”, we are now told that democracy is a licence to engage in war crimes and crimes against humanity.
What’s international about the rules-based order?
Long before the issuing of the current arrest warrants, and months before 7 October 2023, US President Biden during his July 2023 visit to Israel made it clear in The Jerusalem US-Israel Strategic Partnership Joint Declaration that the United States would combat any attempt to bring Israel before any international forum — “including at the United Nations or the International Criminal Court”. This stand might be seen as an iteration of the established “exceptionalizing norm” of Israel. However, a closer look reveals another logic at play.
Neither Biden nor the Washington Post, nor even Israel, are calling simply for the exemption of the Jewish State from the application of international law. Rather they are advancing a foundational, rather than strictly legal, argument that conflates what the United States calls the “rules-based order” (RBO) with international law.
The RBO has been increasingly accentuated in American and British statements. For example, on 12 October 2022 in his National Security Strategy, President Biden repeatedly referenced RBO as the “foundation of global peace and prosperity”. In public statements, the RBO is often used interchangeably with international law, but they are far from being synonymous. In a brief review of the use of the term, eminent jurist John Dugard SC argues that the RBO could be seen as an order advanced by some Western states, particularly the United States, to compete with the international legal order:
Unlike international law, the RBO appears not to be a universal order. Instead, it is an order employed by the West, again particularly the United States, to ensure its dominance.
At best, this recasting of the international order relegates international law to a subsidiary of pre-existing rules determined by the law of force. Israel here plays an exemplary role. Its internally bifurcated constitution as a state is recast as a model of a bifurcated world order. Again, it was Lindsey Graham who outlined the logic most clearly. Having hailed the ICC’s 2023 arrest warrant for Vladimir Putin as “a giant step in the right direction for the international community”, he responded to the warrants for Netanyahu and Gallant by warning, “we’re next … Why can’t they go after Trump or any other American president?” From this perspective, the United States’ ability to establish the rules of international order must prevail over the universality of international law.
Less hypocrisy means more brutality
The lobbying by British conservatives and the endorsement by Israel of Karim Khan’s appointment as ICC chief prosecutor was an attempt to maintain the pretence that the RBO is synonymous with international law. In line with the RBO, Khan was expected to go along with American rules by treating Israeli violations “as sui generis cases in which the national interest precludes accountability”, while using the language of international law.
The mounting evidence of Israeli war crimes made the task assigned to the prosecutor existentially untenable if he is not to render the ICC “an apology for existing power”. On 2 December, the president of the ICC, Tomoko Akane, said that “coercive measures, threats, pressure and acts of sabotage” are jeopardising the court “very existence”. In this context, filing the application for the arrest warrant and issuing it against Netanyahu and Gallant are perhaps Khan’s and the ICC’s last acts of defiance.
Not long ago, Khan filed an application of arrest warrants for the military leaders of Myanmar. After the arrest warrants of Israeli officials, the ICC could not be accused of hypocrisy for solely pursing cases against African and Asian war criminals. Hypocrisy, Marco D’Eramo argues, “is useful as long as and only if it does not appear hypocritical”. However, the unsubtly coercive nature of the RBO and with the bifurcated world order it reveals, renders hypocrisy inoperative.
The RBO ushers in the end of Western hypocrisy associated with the selective application of international law as we have known it — but it also represents the resurfacing of brutality, as the wretched of the earth have known it all along. In Gaza, D’Eramo writes, “hypocrisy … reveal[ed] itself because it has ceased to be sufficiently hypocritical”. Gaza reveals that the correlate of less hypocrisy is more brutality.
Ihab Shalbak is a lecturer in human rights and social justice at the University of Sydney.
