Written by: Navinka Ranindiva Lubis

OVERVIEW

The International Criminal Court (ICC) has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, which cites allegations of war crimes and crimes against humanity during operations in Gaza from October 2023 to May 2024. The last press release from the ICC dated November 21st 2024 stated that they reject the challenges by Israel along with the warrants of arrest for Netanyahu and Gallant. However, the effectiveness of these warrants remains uncertain, considering its enforcement relies on cooperation between member states in which many of them are reluctant to act against allies like Israel. Therefore, it is essential to examine the extent to which international law is binding and effective, using this case as a critical example.

CHALLENGE OF JURISDICTION AND ENFORCEMENT 

Israel’s non-member status in ICC creates a significant condition in the context of jurisdiction and accountability. Although Israel signed the Rome Statute that creates ICC, there was no ratification present. Meaning, Israel is not legally obliged to the court’s jurisdiction and does not acknowledge their jurisdiction and authority to prosecute Israel for alleged offences. In addition, enforcement authority depends on the cooperation of member states to apprehend. This complicates the execution of any arrest warrants by ICC since there’s limited space for enforcement considering it depends on member states to enforce it. 

On the other hand, the ICC keeps holding on to that warrant based on their assessment on “reasonable grounds” saying that Israel is meant to be held responsible for war crimes against innocent civilians in Gaza. Basically, the court has the power to investigate Israeli individuals for offences committed in occupied Palestinian territories. ICC emphasised that their role is to enforce international law despite the status of the subject. Hence, ICC rejected claims from Israel which says that the ICC lacks jurisdiction over them due to their non-member status.

POTENTIAL LOOPHOLE IN THE ROME STATUTE

Netanyahu may contend that, as the leader of a non-member state, he is entitled to immunity under customary international law when visiting countries not bound by the Rome Statute. However, experts argue that these claims are weak since the ICC has ruled that officials from non-member states do not enjoy immunity when facing arrest warrants. While heads of state typically receive certain protections from prosecution, the Rome Statute clearly states that such immunities do not apply to individuals within its jurisdiction, with Article 27 affirming that all individuals are treated equally before the court despite their official capacity.

Moreover, Article 98(1) of the Rome Statute adds complexity by stating that the court cannot request the arrest of officials from non-member states if doing so would conflict with international law obligations regarding immunity. This provision may provide a basis for Netanyahu and other Israeli officials to challenge their prosecution. Ultimately, while Netanyahu might attempt to bolster these immunity claims, the ICC’s established position and prior rulings suggest that such defences are unlikely to succeed in evading accountability for alleged crimes against humanity.

CHALLENGE TO INTERNATIONAL LAW ENFORCEMENT

The effects of this case might extend to future prosecutions and liability of state leaders guilty of war crimes. If state leaders think that they can evade accountability through political manoeuvring or by relying on their status as heads of state, it may deter the effectiveness of international law and embolden further violations. Therefore, how the ICC navigates these challenges will be crucial in shaping its authority and credibility moving forward. The outcomes of such cases will likely influence how future instances of alleged war crimes are addressed on the international stage. This case highlights the challenges of enforcing international law, as the ICC seems to be lacking in their own mechanisms for executing arrest warrants and must depend on the cooperation of member states. Hence, if the ICC aims to establish itself as a credible judicial authority in the realm of international law, it must demonstrate its commitment to take further measures in ensuring that these warrants are acted upon.

Summary

The International Criminal Court (ICC) has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, citing allegations of war crimes and crimes against humanity during military operations in Gaza from October 2023 to May 2024. Despite Israel’s objections, the ICC rejected these challenges, but the effectiveness of the warrants remains uncertain due to the court’s reliance on member states for enforcement. Israel’s non-member status complicates jurisdiction, as it is not legally bound by the ICC’s authority. Netanyahu may claim immunity under international law, but experts argue these claims are weak given the ICC’s stance that such immunities do not apply to individuals within its jurisdiction. This case poses significant challenges to international law enforcement and could influence future prosecutions of state leaders accused of war crimes.

References

Al Jazeera (2024, November 21) World reacts to ICC arrest warrants for Israel’s Netanyahu, Gallant. Al Jazeera. https://www.aljazeera.com/news/2024/11/21/world-reacts-to-icc-arrest-warrants-for-israels-netanyahu-gallant. 

Asem, Sondos. (2024, November 2022) Are Netanyahu and Gallant immune from ICC arrest warrants under international law?. Middle East Eye. https://www.middleeasteye.net/news/icc-netanyahu-gallant-arrest-warrant-immunity-international-law 

International Criminal Court (2024, November 21) Press Release: Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant. ICC CPI https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges  

Mukherjee, Vasudha (2024, November 22) What is the International Criminal Court that issued Netanyahu’s warrant?. Business Standard. https://www.business-standard.com/world-news/what-is-the-international-criminal-court-that-issued-netanyahu-s-warrant-124112200931_1.html. 

United Nations. (1998). Rome Statute of the International Criminal Court. https://www.refworld.org/legal/constinstr/unga/1998/en/64553.