The International Criminal Court (ICC) unanimously decided to reject Israel's challenge to the Court’s jurisdiction. Last week, it issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant for crimes against humanity and war crimes. The warrants came six months after ICC chief prosecutor Karim Khan requested them.
The Pre-Trial chamber - the body of the Court responsible for deciding whether to confirm charges against the accused - found reasonable grounds to believe that Netanyahu and Gallant both bear criminal responsibility for the war crime of "intentionally directing an attack against the civilian population".
This marks a significant legal and political development, as well as a historic decision by the Court, delivered despite considerable pressure and threats of sanctions from the US government. Whilst the full impact of these warrants remains uncertain, one thing is clear: their issuance marks a significant shift in how Israel's treatment of Palestinians, particularly its actions in Gaza, is perceived.
The decision signifies a shift away from Israeli impunity as the status quo and towards accountability. Israel's image and international legitimacy have never been more vulnerable.
What happens next?
Two cases are currently being pursued in relation to Israel's genocide in Gaza. One in the ICC, which considers cases against individuals - and which issued the recent arrest warrants for Netanyahu and Gallant, and one at International Court of Justice (ICJ), which rules on disputes between states. This case was brought by South Africa in December 2023 under the 1948 Genocide Convention.
Whilst the ICC does have jurisdiction over the crime of genocide - one of the four core international crimes - the charges against Netanyahu and Gallant as covered by the warrants exclude genocide. Khan has previously acknowledged that Israel’s ongoing campaign in Gaza is currently being investigated by the Court, along with other crimes not included in the current warrants, rendering further charges including for genocide a possibility.
The 124 States Parties to the Rome Statute are now legally obliged to arrest Netanyahu and Gallant if they were to enter their territory, and hand them over to the Hague. But the Court does not have enforcement powers of its own and relies on the cooperation of member states to surrender suspects.
The EU’s foreign policy chief, Joseph Borrell, said that the ICC decision is binding on all EU Member states. Following the announcement of the warrants several States Parties - including France, Belgium, the Netherlands and Jordan - announced their intention to uphold the court’s decision. France has since made ambiguous their intentions to uphold the decision by stating that Netanyahu has 'immunity' from the ICC arrest warrants as a sitting state leader.
In practice, this will significantly affect Netanyahu’s ability to serve as prime minister. With 124 states legally obligated to arrest and extradite him, it is likely that he will avoid extensive international travel.
A first for a western-allied state
It took the Pre-Trial Chamber six months to decide on these warrants—three times the average response time of two months. By contrast, the arrest warrant for Russian President Vladimir Putin was issued in just three weeks.
During the six months, over 9,000 Palestinians were killed in Israeli bombardment of the enclave and through the systematic starvation of Gaza's population, bringing the official death toll to nearly 45,000. A Lancet study estimates the true figure to be closer to 186,000. Meanwhile, Israel extended its war across the border into Lebanon, killing a further 3,544 people since October last year.
Despite this, the move by the ICC demonstrates how Israel is losing legitimacy on the international stage. This is the first time in the ICC's 22-year history that an arrest warrant has been issued for senior officials within a Western-allied State.
The issuance of the warrants, despite threats by the US and Israel to retaliate against the Court, its officials and their family members, as well as defamatory statements by these states, calls into question the previously unassailable protection afforded by the US alliance.
The ball now is in the court of 124 States Parties to the Rome Statute. Will they arrest a war criminal on landing? Or will they succumb to the bullying and threats of Israel and the US?
Nadine Dahan is a British-Libyan lawyer and former Middle East journalist. She holds a Master of Laws in International Law with a specialisation in human rights.