ICC arrest warrants put Israel's Western allies at a crossroads

The International Criminal Court (ICC) made a historic step this week as chief prosecutor Karim A. A. Khan KC sought arrest warrants for leading Israeli officials, including Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, along with three senior Hamas officials.

Beyond adding further political pressure on Israel over its onslaught in Gaza, there is also the question of how significantly the arrest warrants will impact Israel’s Western allies, who have faced mounting scrutiny over their support for Israel.

Unsurprisingly, both Israel and Hamas condemned the move by Khan, who said the named figures “bear criminal responsibility”. Israeli ministers labelled the decision as “outrageous” and a “moral outrage,” while criticising the equivalency with Hamas, which committed its deadly attack on 7 October.

Hamas and some critics are also dismayed at the decision to equate its own actions with that of Israel. An unnamed official from Hamas, whose leader in Gaza Yahya Sinwar is among those named in the ICC decision, said the ruling "equates the victim with the executioner,” in the context of Israel’s occupation of Palestinian territories since 1967.

Khan’s request further compounds the legal pressure following the separate International Court of Justice’s (ICJ) provisional ruling earlier this year on the plausibility that Israel is committing genocide in Gaza.

The prosecutor’s request, likely to be expanded to include far-right ministers like Itamar Ben Gvir and Bezalel Smotrich, may further isolate Israel.

The initial request will now go to the ICC’s pre-trial chamber, where it’ll take weeks or even months for ICC judges to approve the arrest warrants.

However, legal experts believe the request will be approved.

“Historically, the pre-trial chamber has always issued arrest warrants, and would not turn down the prosecutor’s request. It did so only once, with Omar Bashir in Sudan, but later it decided to approve the arrest warrants after its decision,” Abdelghany Sayed, a former staffer at the ICC prosecutor’s office and legal scholar, told The New Arab.

"Beyond adding further political pressure on Israel, there is also the question of how significantly the arrest warrants will impact Israel's Western allies, who have faced mounting scrutiny over their support for Israel"

What can the ICC do?

The ICC is the first and only permanent international criminal court, aimed at deterring and punishing the most serious crimes, such as genocide, crimes against humanity, war crimes, and aggression. Established by the 1998 Rome Statute, the court officially came into force on 1 July 2002.

The statute, now joined by 124 countries including founding members such as the UK, France, Germany, Italy, the Netherlands, Canada, Australia, Belgium, Norway, South Africa, and Japan, obliges parties to arrest individuals with warrants.

Israel, supported by the US and UK governments, has claimed the ICC has no jurisdiction over it, as it is not a party to the statute. However, in 2021, the ICC ruled that Palestine would be considered a state party to the ICC statute for the purposes of the treaty.

That means the ICC will have jurisdiction over an Israeli if they commit war crimes against a state party, in this case, Palestine.

If individuals with warrants are apprehended, it may take years to conduct trials, with a long process of gathering and preserving evidence, which may require the consent of states to access territory.

“None of us would expect Gallant and Netanyahu being taken away soon, even if arrest warrants are issued and Israeli courts are declared incompetent into looking into it,” Shahd Hammouri, lecturer in international law at the University of Kent, told The New Arab.

“The named Israeli officials would only be unable to travel to states that aren’t members of the ICC, but it wouldn’t mean they directly go to prison.”

Increased pressure on the West

Despite the legal technicalities, Israel’s Western partners may realise that they are at a crossroads, torn between supporting the rule of law or upholding their ties to Israel.

Juliette McIntyre, lecturer in law at the University of South Australia, said the arrest warrants will therefore put heavy political pressure on Israel’s Western partners, including over arms sales.

“It impacts significantly on one's standing in the international community which is why this is more significant in respect of Netanyahu and Gallant than the Hamas leadership, since Hamas is already a designated terrorist organisation in many countries,” she told The New Arab.

She added that this does not create an equivalence between Hamas and Netanyahu however, adding “the standard is the law, and that is what each party's conduct will be assessed against regardless of what the other ‘side’ to the conflict is doing”.

As many would expect, the US has also strongly condemned Khan’s request, with US Secretary of State Anthony Blinken indicating Washington may prepare to sanction ICC figures.

"The arrest warrants will put heavy political pressure on Israel's Western partners, including over arms sales"

Even though Washington is not a signatory to the ICC the potential ramifications of the decision are still a concern, as echoed by US Senator Lindsey Graham’s remarks on Tuesday that "if they do this to Israel, we're next”.

As Abdelghany Sayed, the former staffer at the ICC prosecutor’s office pointed out to TNA, Washington would “still be subject to pressure if Netanyahu or Gallant travelled to the US”.

If Washington continued to welcome named Israeli officials it could face political isolation among the 124 member states of the ICC in its engagement with Israel.  

Europe, meanwhile, is also divided. UK Prime Minister Rishi Sunak dismissed the ICC’s request as “unhelpful,” signalling its increasing isolation along with the US over Israel and Gaza.

So far, Germany, Italy, and France, three other leading arms suppliers to Israel, said that while they respect the court’s independence, they criticised the prospect of implicating Israeli leaders, despite welcoming the naming of Hamas officials.

But as one anonymous German official said, "of course it puts us into trouble for various reasons,” citing Berlin’s unwavering support for Israel coupled with its stated backing of the ICC, having recently faced its own legal battle at The Hague over arms sales to Israel.

These reactions are further signs of fractures in the traditional Western support for Israel, as judicial roles continue to exert pressure on their support. That pressure has also further deepened the divide between Western nations and the ‘Global South’.

Importance of international law

The responses by Western nations to Khan’s request could also further reinforce the notion that political power trumps any notion of a rules-based global order.

Indeed, despite Anthony Blinken’s dismissal of the case against Israel, the US Secretary of State previously argued vis-à-vis an arrest warrant for Vladimir Putin over the Ukraine war that members of the ICC “should fulfil their obligations”.

Moreover, Khan revealed in an interview with CNN that one senior leader told him the ICC is built for "Africans and thugs like Putin" and not Western leaders.

Past ICC attempts to hold American and British forces accountable for their actions during the Iraq war may lend further credence to these concerns. Indeed, in 2020, the US threatened to sanction ICC officials for investigating conduct in Iraq and Afghanistan.

"Israel's Western partners may realise that they are at a crossroads, torn between supporting the rule of law or upholding their ties to Israel"

Meanwhile, the UK avoided further legal action despite the court's ruling that its forces had committed war crimes in Iraq.

However, these court efforts were followed by subsequent domestic legal challenges in both countries, showing that international courts can create a ‘knock-on effect’ by generating further legal pressure.

Given the ICC does not have enforcement powers, political will and sustained legal pressure are crucial to ensure that the law is respected if arrest warrants are issued.

There’s also the important question of whether it’ll bring any relief to the Palestinian population. That not only includes the suffering of civilians in Gaza but also the decades-long Israeli occupation of the West Bank and East Jerusalem.

“It will not have an immediate impact on the war in Gaza; it does not mean a ceasefire will happen,” said law lecturer Juliette McIntyre, adding that parties will still need to be held to account for their actions.

Any ICC arrest warrants would most likely intensify the existing pressure stemming from growing evidence of war crimes, coupled with political shifts including Spain, Ireland, and Norway's moves to recognise Palestine this week (with more states likely to follow), and ongoing debates over ending arms sales to Israel.

But as it stands, the ICC has a key opportunity to demonstrate its growing effectiveness as a tool of global governance.

Jonathan Fenton-Harvey is a journalist and researcher who focuses on conflict, geopolitics, and humanitarian issues in the Middle East and North Africa.

Follow him on Twitter: @jfentonharvey