The decision by judges at the International Criminal Court to issue warrants for the arrest of Israeli prime minister Binyamin Netanyahu and his former defence minister, Yoav Gallant, will polarise opinions on the future of the court as never before.
The pretrial chamber of judges also issued a warrant for Mohammed Deif, a Hamas leader Israel says it killed in an air strike in July – though his death has not been confirmed by Hamas.
There was no notice that the warrants would be issued on Thursday, but it’s likely the court decided that in the current geopolitical climate there was no better-timed option available.
Diplomatic attempts to forge a ceasefire agreement in Gaza and between Israel and Hizbullah in Lebanon have so far been fruitless. The Biden White House has shown itself unable to “lean on” Netanyahu to moderate his offensive – or on Hamas to release the remaining hostages taken in the October 7th attack.
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In addition, Donald Trump – whose disdain for the ICC is well-known – is about to return to the Oval Office, with every likelihood that he will reactivate sanctions without delay against senior ICC officials, including prosecutor Karim Khan.
[ Widespread condemnation of ICC arrest warrants cross Israeli political spectrumOpens in new window ]
And internally at the ICC headquarters in The Hague, Khan himself, just three years in the job, is being investigated for allegations of sexual misconduct towards a female lawyer on his staff – allegations he denies.
All of these background factors have just become more complex and more potentially explosive following the issuing of the warrants, first requested by Khan on May 20th.
In their decision, the judges began by rejecting two technical challenges by Israel to its jurisdiction in the conflict.
The judges said there were “reasonable grounds” for believing that Netanyahu, Gallant and Deif bore “criminal responsibility” for alleged war crimes and crimes against humanity. Both Israel and Hamas have rejected those allegations.
The ICC has no police force, so it cannot enforce the arrest warrants itself. For that reason, it depends on its member states – the 125 countries that are signatories to the Rome Statute that set up the court – to act as its “long arm”.
However, as has been clear in the case of Vladimir Putin, and former Sudanese president Omar al-Bashir before him, that obligation tends to be more honoured in the breach.
However, Netanyahu travels freely and frequently in the West and could now find himself hindered, especially if other Europeans follow the pledge of the Netherlands on Thursday evening to arrest the Israeli prime minister if he “sets foot on Dutch soil” and to end all “non-essential contact” with him.
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