Can the ICC actually arrest Benjamin Netanyahu?

Even though Israel is not a party to the treaty, Palestine is a member state. Thus, the ICC can prosecute Israeli officials for complicity in crimes that Israel Defence Forces soldiers allegedly committed on Palestinian territory. Conversely, the court has jurisdiction over individual members of Hamas (as Palestinian nationals) for the international crimes they allegedly committed in Israel.

The same legal principle has been used in the case of Russia, which is not a party to the Rome Statute. In 2022, a group of 39 countries, including France, Germany, and the United Kingdom, called on the ICC to investigate the Russian invasion of Ukraine. This resulted in the ICC issuing an arrest warrant against Russian President Vladimir Putin for committing war crimes on Ukrainian territory – a move applauded by US President Joe Biden.

It would be contradictory for any of these states to accept the ICC’s jurisdiction over Russian nationals but not those of Israel.

Why is this controversial?

On the eve of his appointment as the US’ chief prosecutor for the Nuremberg trials, Supreme Court justice Robert Jackson said: “We cannot successfully co-operate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national advantage.” This is a rule of good faith that must guide attitudes towards the world’s top courts.

In inquiring into a charge, the ICC singularly focuses on whether the defendant is guilty of the crime as charged according to international law. That inquiry is devoid of politics – or political interference.

It is regrettable that some states have been unwilling to support the court – notably in the execution of arrest warrants – when their friends and allies are concerned. For example, many African and Middle Eastern governments failed to arrest former Sudanese president Omar al-Bashir when he travelled to their countries.This has left many of the court’s arrests warrants unexecuted. In some instances, member states such as Canada, Germany, Nigeria and the UK have made public statements supporting their political allies in situations before the court, notwithstanding that such statements are purely political and tend to undermine the global perception of the court.

What would an ICC indictment mean?

Though it remains unconfirmed, it is likely that any ICC arrest warrant against Israeli officials would include the charge of the use of starvation as a weapon of war in Gaza, given the utterances of Israeli officials themselves and the obstruction of food and aid that have been widely decried by many.

However, arrest warrants and indictments do not mean that the people charged are guilty of the crimes. While an ICC inquiry is ongoing, the defendant will enjoy the presumption of innocence throughout and will be afforded every opportunity to defend themselves.

At the end of the trial, the three judges will decide – by majority – whether the evidence the prosecutor marshalled against the defendant satisfied the required standard of proof for conviction. And that bar is very high.

There have been many cases at the ICC where the judges convicted the defendants because that high standard of proof was met. But there have also been cases in which ICC judges have acquitted defendants at the end of their trials or appeals. Notable examples include former Ivorian president Laurent Gbagbo and one of his ministers, Charles Ble Goude, who were acquitted at their trial. The conviction of Jean-Pierre Bemba, a former Congolese senator and vice president, was overturned on appeal.

Ultimately, the question turns to what arrest warrants would mean, in the meantime, for Israeli officials. Based on the ICC’s previous experience, it would not mean an immediate arrest and trial. Bashir has still not been arrested or tried, even though his arrest warrant was issued in 2009. For a long time, before he was deposed, he kept travelling to friendly states that did not arrest him. Their argument was that customary international law recognised immunity for him as a head of state. But finally in 2019, the ICC Appeals Chamber stated clearly that no such immunity existed in relation to cases before international tribunals, especially the ICC.

The immediate problem for Israeli officials under any ICC arrest warrant would be that the court’s 124 member states would be under a legal obligation to arrest such officials if they travelled to any of those 124 countries. That obligation should not be underestimated – just last year, Vladimir Putin cancelled his plans to attend the BRICS summit in South Africa, in the apparent light of Pretoria’s obligation to arrest him.

Chile Eboe-Osuji is a former president of the International Criminal Court.

Foreign Policy