ICC arrest warrants: What are the legal consequences for Netanyahu and Gallant?

By Rabia Ali

ISTANBUL (AA) – The International Criminal Court (ICC) has issued arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes carried out in Palestinian territories, including Gaza.

The warrants are a significant development in ongoing efforts to hold Israel accountable for its genocide in Gaza, which is now in its second year, and escalating aggression on the occupied West Bank.

The ICC’s Pre-Trial Chamber I said the warrants cover “crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024, the day the Prosecution filed the applications for warrants of arrest.”

In doing so, it also unanimously rejected Israel’s challenges to jurisdiction under Articles 18 and 19 of the Rome Statute, the ICC’s governing treaty.

On their alleged crimes, the court said it “found reasonable grounds” to believe that Netanyahu and Gallant “each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”

The ICC has also issued a warrant for senior Hamas leader Mohammed Diab Ibrahim Al-Masri, commonly known as Deif. Israel claims Deif was killed in a July air raid in southern Gaza, but Hamas has yet to confirm it publicly.

The warrants for the Israelis, according to experts, make them accused war criminals, and are the first ever for leaders of a Western-allied country.

The ICC’s announcement has significant repercussions for Netanyahu and Gallant, the most major one being that all 124 of the court’s signatory countries are now obliged to arrest and hand them over for prosecution if they set foot on their territory.

These 124 countries include some of Israel’s staunchest Western allies, who have been giving it weapons and diplomatic cover to carry out its atrocities against Palestinians, such as the UK, Canada, Australia, Germany, France, Belgium, Italy, Netherlands and Norway.

Other European nations that would be off limits for the Israeli leaders include Spain, Switzerland, Denmark, Croatia, Czech Republic, Finland, Hungary, Portugal and Poland.

More major ICC signatories include Greece, New Zealand, South Korea, Japan, South Africa, Nigeria, Mexico, Kenya, Colombia and Brazil.

A glaring exception would be the US, which withdrew from the Rome Statute in 2002, meaning that it would not be legally obliged to take action against Netanyahu and Gallant.

However, according to the ICC, while non-states parties have no obligation, they are “encouraged” to take action to execute the warrants, since the court itself has no enforcement mechanism.

An ICC manual says that some non-signatories have played an active role in previous surrender operations.

“However, when the UNSC triggers the Court’s jurisdiction over a given situation, the duty to cooperate binds the relevant UN Member States, regardless of whether or not they are a State Party to the Rome Statute,” reads the document.

- ‘Allies of Israel in the West will come under pressure’

Legal scholar Gerhard Kemp told Anadolu that the ICC’s decision to issue warrants is “significant for several reasons” and puts pressure on those nations that have been supporting Israel despite international backlash over its genocide in Gaza.

“It reconfirms that the ICC has jurisdiction over the situation in Palestine, it rejected Israel’s jurisdiction challenges, it made important observations regarding the nature of the conflict (international armed conflict and applicability of international humanitarian law and so on), it made important observations about the strength of the evidence,” he said.

“Perhaps most significantly, it confirms the ICC principle that official capacity is not a bar to the execution of arrest warrants and ultimately trial at the ICC of senior government officials, in this instance including the Prime Minister of Israel.”

Just like Sudan’s Omar Al-Bashir and Russian President Vladimir Putin, this arrest warrant for Netanyahu “will pose significant diplomatic and political challenges for members of the ICC, especially states party in the West – like Germany and the UK,” he continued.

“Of course, states party to the Rome Statute have the legal obligation … but as we have seen with Bashir (when South Africa and Jordan and other states failed to execute the arrest warrant) and more recently Mongolia (when it failed to arrest Putin), member states often find it politically difficult to follow through with their obligations,” said Kemp.

“I suspect European countries and other traditional allies of Israel in the West will come under pressure to quickly take a position on whether they will execute the arrest warrants if the occasion arises.”