The International Criminal Court Shows Its Mettle
9 min read
Passing judgment on the Israeli-Palestinian conflict was never going to be simple for the International Criminal Court. Even harder than acting fairly and impartially would be appearing to have done so, in a conflict that stirs fierce passions the world over.
On top of that, equality before the law is a basic principle of justice, but until this point, the ICC has mainly prosecuted authoritarian and non-Western leaders. Almost all of the court’s top funders are Western democracies or their allies. Now, for the first time in its history, the ICC would be asked to assess the actions of a democratically elected government allied with the West, and to show that it could do so without special favor.
Last Thursday, the ICC rose to this challenge. A three-person panel at the court approved arrest-warrant requests for Israel’s prime minister, Benjamin Netanyahu, and former Defense Minister Yoav Gallant. The Israeli officials are accused of war crimes and crimes against humanity, including the murder and starvation of Palestinians.
Back in May, prosecutors also asked for arrest warrants for three Hamas leaders, who stand accused of extermination, murder, rape, and sexual assault against Israeli citizens during the attacks of October 7. Two of the three (Ismail Haniyeh and Yahya Sinwar) have since been killed by Israel. The ICC issued the arrest warrant for the third, Mohammed Deif. Israel claims to have killed him too, but Hamas has not confirmed his death.
The three judges who made the decision hail from Benin, France, and Slovenia, but were elected by all 124 member states of the ICC and went through a rigorous vetting process. Their months-long deliberations included engaging with the Israeli government and assessing its claim that its own courts could handle the matter.
Since its foundation, in 2002, the ICC has investigated crimes all over the world. It is limited in both the types of crimes it can investigate (genocide, war crimes, crimes against humanity, and aggression) and its territorial jurisdiction (restricted mostly to its member states, which include countries in the European Union, Latin America, the antipodes, and half of Africa). Yet it has managed to levy charges for crimes committed in 17 countries and issue arrest warrants for despots such as Vladimir Putin, Muammar Qaddafi, and Omar al-Bashir.
For years, however, many non-Western leaders have accused the court of having a pro-Western bias. The arrest warrants against Israeli leaders offer the ICC an opportunity to prove otherwise. But much will depend on how seriously countries allied with Israel take the court’s orders.
The court’s members include the majority of Western countries, which will now be obligated to arrest Netanyahu or Gallant if either sets foot in their territory. Canada, one of the court’s biggest funders, was among the first to commit to doing so. Belgium, Ireland, Portugal, Norway, Australia, Spain, Liechtenstein, the Czech Republic, Finland, the Netherlands, Denmark, and Slovenia have followed suit. Most other Western countries have treated the warrant with vagueness, generally agreeing that it is valid without committing specifically to arresting Netanyahu and Gallant.
Initially, only one EU member, Viktor Orbán’s Hungary, a self-described “illiberal democracy,” outright opposed the warrant and even asked Netanyahu to visit. But on November 27, France declared that it considered Netanyahu immune from the ICC’s order because Israel is not a member of the court. If this principle is to be applied elsewhere, Putin, too, should be considered immune, given Russia’s non-membership in the ICC. The United States is also not a member of the court and is in fact openly hostile to its operations. The Biden administration has declared its disagreement with the arrest warrants, and surrogates of President-Elect Donald Trump have accused the court of anti-Semitism, promising a much tougher approach when Trump comes into office.
Netanyahu, like many others wanted by the court, will probably never appear before it. But that doesn’t make the ruling meaningless. International law has always been aspirational, in part because the world lacks an international law-enforcement agency (Interpol serves only to coordinate among various national police forces). But international justice has more significance in the world today than at any previous time in human history. Dozens of treaties obligate countries around the world and are referenced every day in national and transnational courts, sometimes leading to real results for victims and perpetrators. Viewed from a long historical perspective, this is a grand achievement. And last week’s ruling, by demonstrating an equal application of international law to a Western country, advances that cause.
In Governing the World: The History of an Idea, the historian Mark Mazower writes that the quest for a global court began before the First World War, with an enthusiastic, international group of peace activists who hoped that arbitration could bring an end to war. President Theodore Roosevelt, an ardent supporter of that movement, helped give tooth to the Permanent Court of Arbitration, founded in 1899 at The Hague. But advocates’ hopes soon crashed into the gory realities of the 20th century. The First World War killed millions. The League of Nations, created in its aftermath, was soon overtaken by events: Liberalism retreated behind fascism and communism in the 1930s, and a Second World War followed the first, culminating in atrocities with little precedent in human history.
Still, the quest for international justice did not die. The defeat of Nazi Germany and of Japan, and the revelation of the extraordinary extent of their crimes, led to international trials in Nuremberg and Tokyo and the foundation of the United Nations.
Nearly a century later, the International Criminal Court was founded during the optimistic period that followed the fall of the Soviet Union, in 1991. Democracy appeared ascendant, maybe even inevitable. The genocides in Rwanda and the territories of the former Yugoslavia tempered that period’s hopes—but they were met with international tribunals, which held out the promise that war criminals could no longer expect impunity. A United Nations conference in 1998, attended by representatives of 161 states, adopted the Rome Statute, which established the ICC four years later.
Many of the legal professionals who went to work for the ICC had been shaped by the experience of working for the ad hoc tribunals for Rwanda and Yugoslavia, which were relatively successful in delivering verdicts against human-rights offenders. For example, the Iranian Canadian lawyer Payam Akhavan served as a legal adviser at the tribunals for both Rwanda and Yugoslavia and then argued cases before the ICC, where he represented post-Qaddafi Libya as the country attempted to bring officials of the former regime to justice. In his book, In Search of a Better World: A Human Rights Odyssey,Akhavan describes the establishment of the ICC as the consummation of the idea of justice propounded at Nuremberg.
But the ICC has been bedeviled by controversy for much of its short life. In its early years, the court focused largely on African war criminals, because many of its member states were African. This led to allegations of bias. In the years since, it has expanded its operations across the world. And yet, most people live in countries where the court has no jurisdiction. Powerful nations such as China, India, Indonesia, and Saudi Arabia never joined. The United States, Israel, and Russia signed the Rome Statute but then withdrew their signatures. The year the court was founded, the United States adopted the American Service-Members’ Protection Act, in which it promised to take any necessary measures to release “any U.S. or allied personnel” detained by the court.
A far simpler way of denying the court’s authority is to ignore it. In 2015, South Africa refused to arrest Sudanese President Omar al-Bashir despite an ICC warrant. Earlier this year, Mongolia all but rolled out the red carpet for a visit from Russian President Vladimir Putin, the ICC’s warrant for his arrest notwithstanding.
But none of this means that the court, or the quest for international justice more broadly, is ineffectual. Putin has had to skip many an international summit (he skipped the recent Group of 20 meeting in Brazil, just as he did last year’s BRICS meeting in South Africa). And the ICC’s legal work can be used by other courts to prosecute alleged perpetrators. In the case of Israel, Netanyahu and Gallant are unlikely to ever be tried in The Hague, but the world has become much smaller for them. The warrants also provide an opportunity for Israel’s judicial system to prove its mettle: The ICC has declared that if Israel chooses to prosecute the allegations in its national court system, the warrants will be dropped.
The quest to have human conflicts decided by men and women in robes and wigs, and not just those in berets and boots, should resonate deeply with Israel’s founding ideals. The state’s declaration of independence in 1948 promised that it was “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.” But it anchored this right in international law, pointing to the newly formed United Nations, which is mentioned seven times in the declaration.
Israel’s first government was led by nationalists and socialists. But the country’s first justice minister, and the architect of its judicial system, was one of the few signatories of the declaration who defined himself primarily as a liberal. A Berlin-born lawyer, Pinchas Rosen had moved to the British Mandate for Palestine in 1926, at the age of 39, having earned law degrees in Germany before the country’s liberal traditions were destroyed by Nazism.
Israel was hardly a liberal paradise in its early years. It enforced a military rule over its Arab citizens until 1966. But Rosen did establish a robust court system and was adamant that the State of Israel was to be a state of law. The country joined the United Nations and, with such legendary diplomats as the British-educated Abba Eban, overcame the isolation of its early years to establish a seat for itself at the table of international law. Israel’s occupation of Palestinian territories since 1967 has rightly called that commitment to the law into question; but it has also been the subject of contestation within the country.
Practically all of Israel’s political leaders have condemned the ICC’s decision. But some voices of dissent are audible. Naama Lazimi, a progressive member of the Knesset, called Thursday “a sad day for Israel” and put the blame for the decision on Netanyahu, not the court. “This was unnecessary,” she wrote on X, adding that it could have been avoided if the Israeli government had undertaken an independent inquiry and pursued a settlement to end the war and return the hostages held by Hamas. “But Netanyahu chose and still chooses his own position and cynical and personal interests,” she concluded: “The Hague has come out against Netanyahu, Netanyahu against Israel.” The Israeli organization Peace Now has taken a similar position, blaming the country’s leadership.
The long-term interests of Israel and those of enthusiasts for international law need not diverge. As a small country with many ill-wishers, surrounded by militias that clamor for its destruction, Israel often feels itself under siege and classifies any action against it as an unforgivable betrayal. But the country owes much of its past success to its recognition under international law and its membership in the community of democratic nations. Illegally occupying the Palestinian territories, and disregarding competent international forums such as ICC, serve to undermine that status. A world where liberal democratic norms, such as respect for international legal institutions, are more prevalent will ultimately be a safer one for Israel, especially if it wishes to fulfill the dream of its founders to be a Jewish and democratic state.
The call from The Hague should thus be seen as an urgent message that the country needs to correct its course and step back from the campaign it has pursued since October 2023. True friends of Israel are not those who attempt to shield it from international justice. They are those who remind it that as a sovereign nation, it has the right to defend itself—but not the right to be immune from legal judgment.
