The International
Criminal Court’s (ICC) stunning issuance of arrest warrants for
Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav
Gallant for war crimes and crimes against humanity is a major game changer.
After years of impunity, the chickens unleashed by Israel’s genocidal campaign
in Gaza have finally come home to roost.
These charges against
Netanyahu and Gallant are momentous. This is the first time the ICC has issued
arrest warrants against an Israeli official for crimes against the Palestinian
people. It is only the second time in its 22 years of existence that the ICC
has issued an arrest warrant for someone who is not from the African continent.
Palestinian human
rights organizations Al-Haq, Al Mezan Center for Human Rights, and the
Palestinian Centre for Human Rights called the
ICC’s decision “a historic and pivotal moment in the battle against Israel’s
impunity, in which the Palestinian people have been denied justice, and
subjugated for decades under a genocidal, settler-colonial apartheid regime.”
U.S. History of Undermining the
ICC
The United States had
a fraught relationship with the ICC even before it opened for business in 2002.
As President Bill Clinton was leaving office, he signed the court’s Rome
Statute, stating, “I believe
that a properly constituted and structured International Criminal Court would
make a profound contribution in deterring egregious human rights abuses
worldwide, and that signature increases the chances for productive discussions
with other governments to advance these goals in the months and years ahead.”
But Clinton urged
incoming President George W. Bush to refrain from sending it to the Senate for
advice and consent to ratification. Bush went even further and, in an
unprecedented move, unsigned the treaty on behalf of the United States. Since
then, the U.S. has consistently tried to undermine the ICC.
In 2003, Congress
passed and Bush signed the American Service-Members’
Protection Act, which is known as “The Hague Invasion Act.” It says
that if a U.S. or allied national is detained by the ICC in The Hague,
Netherlands, the U.S. military can use armed force to extricate them. This
would apply to close U.S. ally Israel.
The Bush
administration effectively blackmailed 100 countries that were parties to the
Rome Statute by forcing them to sign bilateral immunity
agreements in which they promised not to turn over U.S. persons
to the ICC or the United States would withhold foreign aid from them.
Senate Majority
Leader John Thune has introduced bipartisan legislation to sanction ICC
prosecutors who try to file charges against Israeli officials. Forty-two
Democrats voted for the House version of Thune’s bill.
When he was
president, Donald Trump imposed sanctions on ICC prosecutors in a reprisal
against the court’s investigations of Israeli leaders, and investigations of
U.S. officials for war crimes committed in Afghanistan. Although President Joe
Biden reversed Trump’s
order in 2021, he reiterated the U.S. government’s “longstanding objection to
the Court’s efforts to assert jurisdiction” over Israeli and U.S. personnel.
The Biden
administration, which has sent at least $17.9 billion in
military aid to Israel since October 7, 2023, denounced the charges against
Netanyahu and Gallant. A spokesperson for the National Security Council said in a
statement that the ICC has no jurisdiction over Israel, the U.S. is consulting
with Israel on “next steps,” and “The United States fundamentally rejects the
court’s decision to issue arrest warrants for senior Israeli officials.”
By providing military
support and diplomatic cover to Israel, U.S. leaders could be charged under the
Rome Statute with aiding and abetting Israel’s war crimes and crimes against
humanity. But the ICC is unlikely to file such charges.
Will the U.S.
government play spoiler of international justice by invading The Hague to
extract the Israeli officials if they are arrested? Sen. Tom Cotton
(R-Arkansas) responded to the arrest warrants by invoking The
Hague Invasion Act. “Woe to him and anyone who tries to enforce these outlaw
warrants,” he warned. “Let me give them all a friendly reminder: the American
law on the ICC is known as The Hague Invasion Act for a reason. Think about
it.”
War Crimes of Starvation as a
Form of Warfare and Intentional Attacks on Civilians
On November 21 — Day
441 of Israel’s genocidal campaign which has killed more than 44,000
Palestinian people — the ICC’s Pre-Trial Chamber I announced that
it found reasonable grounds to believe Netanyahu and Gallant were
co-perpetrators of the war crime of starvation as a method of warfare,
committed from at least October 8, 2023, until at least May 20, 2024, the day
the Prosecution filed the applications for arrest warrants.
The Chamber found
reasonable grounds to believe that Netanyahu and Gallant “intentionally and
knowingly deprived the civilian population in Gaza of objects indispensable to
their survival, including food, water, and medicine and medical supplies, as
well as fuel and electricity.” The Chamber noted the role of Netanyahu and
Gallant “in impeding humanitarian aid in violation of international
humanitarian law and their failure to facilitate relief by all means at its
disposal.”
In addition, the
decisions by the two Israeli officials to allow or increase humanitarian aid
“were not made to fulfil Israel’s obligations under international humanitarian
law or to ensure that the civilian population in Gaza would be adequately
supplied with goods in need,” the Chamber concluded. They were, rather, “a
response to the pressure of the international community or requests by the
United States of America.”
The Chamber also
found reasonable grounds to believe that Netanyahu and Gallant bear criminal
responsibility as civilian superiors for the war crime of intentionally
directing an attack against the civilian population.
Crimes Against Humanity of
Murder, Persecution and Other Inhumane Acts
Pre-Trial Chamber I
found reasonable grounds to believe that Netanyahu and Gallant were
co-perpetrators of the crimes against humanity of murder, persecution, and
other inhumane acts during the same time period.
“[T]he lack of food,
water, electricity and fuel, and specific medical supplies, created conditions
of life calculated to bring about the destruction of part of the civilian
population in Gaza, which resulted in the death of civilians, including
children due to malnutrition and dehydration,” the Chamber concluded. Thus,
“there are reasonable grounds to believe that the crime against humanity of
murder was committed in relation to these victims.”
Moreover, “by
intentionally limiting or preventing medical supplies and medicine from getting
into Gaza … the two individuals are also responsible for inflicting great
suffering by means of inhumane acts on persons in need of treatment,” the
Chamber stated. “This amounts to the crime against humanity of other inhumane
acts.”
The Chamber also
found reasonable grounds to believe that the conduct of Netanyahu and Gallant
“deprived a significant portion of the civilian population in Gaza of their
fundamental rights, including the rights to life and health, and that the
population was targeted based on political and/or national grounds.” It
therefore concluded that they committed the crime against humanity of
persecution.
Netanyahu Denounced the Arrest
Warrants
Netanyahu’s denunciation of
the arrest warrants was swift and strong. He called the ICC’s decision an
“antisemitic move with one goal: to deter me, to deter us, from exercising our
natural right to defend ourselves against our enemies who seek to destroy us.”
He denounced the court as “biased” and said its accusations of “fictitious
crimes” are “absurd” and “distorted,” adding, “This is a moral bankruptcy” that
impairs the “natural right of democracies to defend themselves against
murderous terrorism.”
Israel’s claim of
self-defense is spurious. In its 2004 advisory opinion on the “Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory,” the ICJ established the non-applicability of self-defense under
Article 51 of the UN Charter in the situation between Israel and the Occupied
Palestinian Territory. Indeed, the Fourth Geneva Convention requires Israel, as
Occupying Power, to protect the occupied Palestinian people. And it is Israel’s
genocidal actions, not the ICC’s arrest warrants, that are fomenting
antisemitism. The widespread opposition to the genocide is not based in
antisemitism, but rather revulsion at the atrocities Israel is committing
against the Palestinian people.
The Chamber rejected
Israel’s claim that the ICC has no jurisdiction over the Situation in
Palestine. The fact that Israel is not a party to the Rome Statute is not a bar
to the ICC’s jurisdiction, the Chamber concluded. The State of Palestine has
been a state party to the Rome Statute since 2015. The court cited its February
2021 decision, in which Pre-Trial Chamber I held that the
court could exercise criminal jurisdiction in the Situation in Palestine and
that the territorial scope of this jurisdiction extended to Gaza and the West
Bank, including East Jerusalem.
Parties to the Rome Statute Say
They Would Send Netanyahu and Gallant to The Hague
Now, all 124 states
parties to the Rome Statute have a legal obligation to arrest Netanyahu and
Gallant and send them to the ICC if they are caught in the state’s territory.
Several states parties — including Canada, Italy, the U.K., Belgium and the
Netherlands — have expressed their intention to comply with this legal duty.
“The states that
signed the Rome convention are obliged to implement the decision of the court.
It’s not optional,” High Representative of the European Union for Foreign
Affairs and Security Policy Josep Borrell said while in
Cyprus for a meeting of Israeli and Palestinian peace activists.
But if any country
sends Netanyahu and Gallant to The Hague, the U.S. may well send troops in to
extract them.
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