The issuance of arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his former War Minister, Yoav Gallant, on November 21, not only shocked the Israeli and U.S. establishment but also parts of the 125 State Parties to the Rome Statute of the International Criminal Court (ICC), who would soon be tasked with executing those warrants, once they’ve been certified and communicated to them by the Court Registry.
This past week, in the sprawling chambers of the World Forum Convention Center in The Hague, representatives of those countries gathered for the 23rd Session of the ICC’s Assembly of State Parties (ASP), the representative body that funds, governs, and supervises the implementation of the ICC’s founding treaty. The ASP ultimately ensures that the perpetrators of the most serious international crimes are arrested, tried, and jailed.
In both the ASP’s official convening and behind the scenes in the halls of The Hague, the topic fresh on everyone’s minds was the question of the ICC warrants against Netanyhau and Gallant and the potentially disastrous implications for the international rules-based order should state parties cave to external pressures seeking to shield the Israeli officials from accountability.
Among the crimes Netanyahu and Gallant have been charged with, in warrants classified ‘secret’: “the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution, and other inhumane acts,” all “part of a widespread and systematic attack against the civilian population of Gaza.”
Suggesting the crime of genocide – without using the term – ICC Pre-Trial Chamber judges cited “reasonable grounds to believe [Netanyahu and Gallant] intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival.”
If Netanyahu, Gallant, and other Israeli officials liable to be charged with grievous crimes feel under the gun, so do the Rome Statute’s 125 State Parties, confronted with the prospect of arresting and surrendering leaders of a purportedly democratic, Western-backed state – and the beloved ally of the most powerful state in the world.
Existential threats
“We are at a turning point in history,” ICC judge and Court President Tomoko Atame told the Assembly at the December 2 opening of ASP proceedings in the Dutch administrative capital.
“International law and international justice are under threat,” Atame said. “The danger for the Court is existential … The Court’s future is now entirely in your hands.”
Indeed it is. Dozens of foreign ministers and assorted delegates stepped up to the Assembly lectern, calling for an end to double standards and impunity; for the authors of the gravest crimes to be pursued “without fear or favor”; for States Parties to cooperate with the Court, first and foremost, by executing arrest warrants.
The only delegate who referred to Israel’s assault on Gaza in any detail was Namibian Minister of Justice Yvonne Dausab.
Namibia “welcomes the recent arrest warrants being issued by the International Criminal Court of Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant,” Dausab declared.
“Namibia is appalled by the death, injury, and suffering of the people of the occupied Palestinian Territory, their indiscriminate displacement, the destruction of infrastructure, including schools and hospitals,” said Dausab. “The denial of access to humanitarian aid is a total affront to the Geneva Conventions … Our civilized collective conscience must be horrified.”
Undermined and attacked
Top of mind for many States Parties at last week’s gathering, and for non-governmental groups who also spoke were the litany of threats, acts of intimidation, and sabotage the ICC has been facing, some of the most brazen from states that have refused to accede to the Rome Statute.
These threats seem to be coming from multiple directions.
“It’s quite possible to imagine a surgical application of a hypersonic Onyx from a Russian ship in the North Sea on The Hague courthouse,” suggested Russian President Dmitry Medvedev, current deputy chair of Russia’s Security Council, in response to the ICC’s arrest warrant against Vladimir Putin, issued by the court in March 2023, “so, judges, look carefully to the sky.”
In the wake of ICC arrest warrants against Israeli leaders, some American politicians appear willing to join Russia in its assault on the world’s preeminent criminal court.
“The ICC is a kangaroo court and Karim Khan is a deranged fanatic,” Arkansas Senator Tom Cotton declared in a recent X post. “Woe to him and anyone who tries to enforce these outlaw warrants. Let me give them all a friendly reminder: the American law on the ICC is known as The Hague Invasion Act for a reason. Think about it.”
In an April 24 letter, a month prior to ICC Chief Prosecutor Karim Khan’s application for arrest warrants against Netanyahu and Gallant, Cotton and eleven other Republican Senators warned that ”the United States will not tolerate politicized attacks by the ICC on our allies.”
“Target Israel and we will target you,” the Senators added. “If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.”
In early June, in the wake of Khan’s application for arrest warrants, by a vote of 247-155, the U.S. House approved sanctions on the ICC. Forty-two Democrats voted in favor.
House Resolution 8282 awaits approval by the U.S. Senate.
U.S. allies soon to be tasked with executing Khan’s warrants against Israeli leaders have also been threatened.
“To any ally – Canada, Britain, Germany, France – if you try to help the ICC, we are going to sanction you,” South Carolina Senator Lindsey Graham told Fox News in late November (at 7:10 here) – referring to the Hague-based ICC as a Belgian court.
“The Rome Statute doesn’t apply to Israel or the United States,” Graham declared on another occasion, “because it wasn’t conceived to come after us.”
The most egregious attempts to thwart ICC prosecution of Israeli leaders appear to have been made by Israel itself: alleged hacking of ICC software systems, and thuggish, face-to-face threats against former Chief Prosecutor Fatou Bensouda.
Threats against the court could backfire, Australian human rights lawyer Chris Sidoti told the ASP last week, by video link.
The “pompous posturing of puffed-up politicians” is one thing, said Sidoti. Under Article 70 of the Rome Statute, Sidoti continued, actions that intimidate, corrupt or injure witnesses, court officials and the court itself are prosecutable crimes.
So are acts that aid and abet Rome Statute crimes.
“We are killed with American, European bombs!” shouted Raji Sourani, Director of the Palestinian Center for Human Rights, in a standing-room-only side session of last week’s Assembly, pounding his fist on the table, and calling for accountability.
“Do you want Gaza and Palestine to be the graveyard of international law? The free committed people through the globe cannot be hostage for four, five, six states, who takes, you know, all this international legal system and want to destroy it, want to banish it … It’s Kafka!”
Western double standards
Threats against the ICC by non-Rome State parties are a source of huge concern, delegates to last week’s assembly declared. Much more troubling – the unwillingness of those who have acceded to the court’s founding treaty to fulfill their statutory duty to execute arrest warrants. Contradictory statements abound.
“The [German] federal government adheres to the law, because no one is above it,” said German Foreign Minister Annalina Baerbock, on the sidelines of a meeting of G7 Foreign Ministers in the Italian city of Fiuggi, on November 26.
Days earlier, German government spokesman Steffen Hebestreit announced that “domestic steps” resulting from arrest warrants against Israeli leaders would be “carefully” examined, adding: “I find it difficult to imagine us making arrests.”
“France will comply with its international obligations,” the French Foreign Ministry stated on November 27, stipulating that, as the leader of a non-state party to the Rome Statute, Benjamin Netanyahu enjoyed immunity.
In the wake of the Lebanon ceasefire deal struck just 24 hours earlier – with France as co-guarantor – France’s position on Netanyahu’s immunity appeared to be a quid pro quo.
“[In] accordance with the long-standing friendship between France and Israel,” France’s November 27 communique added, “France intends to continue working in close cooperation with Prime Minister Netanyahu and the other Israeli authorities to achieve peace and security for all in the Middle East.”
In fact, neither non-Rome State Parties, nor their leaders enjoy immunity.
“[Official] capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility,” Article 27 of the Statute states.
“No one, no matter who they are or where they are, must be allowed to escape justice,” Hungary’s Ambassador told the ASP last week – although Hungary was among the first Rome State Parties, alongside Argentina, to announce that Netanyahu would be welcome to visit.
Ireland would be less hospitable.
“We cannot claim to care about victims and then invite perpetrators into our house,” Irish Ambassador to the Netherlands, Ann Derwin, told the ASP last week.
“Justice is not an a la carte menu,” said Derwin. “We cannot choose to adhere to our obligations under the Rome Statutes when it suits us and ignore them when it does not.”
True to its status as ICC host state, the Netherlands takes the high road – perhaps.
“We act on arrest warrants for people who are on Dutch territory,” Dutch Foreign Minister Caspar Veldkamp told the lower chamber of the Dutch Parliament in November.
Days later, Dutch Prime Minister Dick Schoof (aka “Tricky Dick”) waffled.
“There are possible scenarios … in which [Netanyahu] would be able to come to the Netherlands without being arrested,” Schoof told a news conference on the eve of the ASP.
“That’s not correct,” the Netherlands’ Permanent Representative to the ICC, Henk Cor van der Kwast, told Mondoweiss, insisting that Foreign Minister Veldkamp got it right.
“If [Netanyahu] comes, he will be arrested,” van der Kwast said.
Will international law, or geopolitics, prevail?
Sprawled out on a set of stairs at the World Forum Convention Center, in The Hague last week, South Africa’s Ambassador to the Netherlands, Vusi Madonsela, spoke with Mondoweiss about the ambiguous commitment to execute arrest warrants against Israeli leaders, and the confidence crisis this has engendered among Rome Statute parties.
“We’ve listened to some statements being made by countries like France, the UK,” Madonsela told Mondoweiss. “We understand even the Netherlands may be dithering in that direction, that says that they think there is the technical loophole that would allow them not to cooperate with the court by way of arresting and surrendering Prime Minister Netanyahu or former Minister Gallant.”
“All states parties must be willing to put their shoulder [to] the wheel and cooperate with the court, or else the international criminal justice system is going to be undermined,” Madonsela said.
Indeed, Article 86 of the Rome Statute obliges States Parties to “cooperate fully with the Court,” including by executing arrest warrants – no ifs, ands, or buts.
The suggestion that they wouldn’t lies at the heart of the ICC’s crisis of confidence, speakers at last week’s Assembly of State Parties declared.
“We can have States Parties that loudly applaud one decision taken by the court while indicating an unwillingness to enforce another,” Australian jurist Chris Sidoti told delegates last week. “This inconsistency, this hypocrisy, poses a graver threat to international law, international judicial bodies, and the international rule of law than anything else … I accept that states act in their own interests. I accept that they always have and they always will. But in the past, they have often seen their own interests as being best met through a long term effort to build an international rule of law with well developed law and functioning institutions. Increasingly now, states seem to see their own interests as short term and entirely self-centred. That is the root cause of the crisis.”
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