ICC puts its reputation on trial by chasing Netanyahu

Pursuit of democratically elected individuals who have been supported by the West will test court’s legitimacy

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The decision of the International Criminal Court to issue arrest warrants against Benjamin Netanyahu and Yoav Gallant is risky. At stake is not just the fate of the two defendants but the reputation and relevance of the court itself.
Founded in 2002, it is the first time the ICC has issued warrants for the arrest of democratically elected leaders. It is also the first time it has pursued individuals whose enterprise has been substantially supported by the West. Of the 124 member states of the ICC on whom responsibility for enforcement of the warrants now falls, a good number – including the UK and much of Western Europe – provide arms and other military assistance to Israel.
This clash of interests will prove a major test of the court and the independence of its members’ own judicial systems. Few of the arrest warrants the ICC issues – including an outstanding one for Vladimir Putin – are quickly enforced, but generally not for want of trying. Of the 25 fugitives it lists as being currently “at large”, the great bulk are in countries outside its jurisdiction, many holed up in the lawless deserts of north Africa and the Sahel.
Mr Netanyahu and Mr Gallant could also just sit tight. Israel is not a member of the ICC and neither is the US, the country’s most powerful ally. But their prominence and proximity to the Western interests is likely to draw greater attention and with it questions about the power and relevance of the court. Some may start to ask: what’s the point of the ICC if it can’t even reach our allies, those we do business with daily?
After the warrants were issued on Thursday, Israelis accused the ICC of corruption, incompetence and more. Mr Netanyahu’s office characterised the “anti-Semitic decision” as something akin to “a modern Dreyfus trial”. Isaac Herzog, the country’s president, said the ICC’s decision marked “a dark day for justice [and] humanity.” It had chosen “terror and evil over democracy and freedom, and turned the very system of justice into a human shield for Hamas,” he added.
A more powerful challenge to the court’s legitimacy may come from the US. “We remain deeply concerned by the prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision,” the White House said. “The United States has been clear that the ICC does not have jurisdiction over this matter.”
But for President Joe Biden, there’s an issue of consistency. In March, he publicly welcomed the ICC’s decision to issue an arrest warrant for Mr Putin. The court held no sway in the US but the move made “a very strong point”, he told reporters. The Russian leader had “clearly committed war crimes”, he added.
Donald Trump’s views on the matter may not carry much clout amongst scholars of jurisprudence but could pack a serious political punch. At the time of writing, the president-elect had yet to comment on the ICC warrants but he is likely to be weighing his response carefully.
He has a horrendously complex situation in the Middle East to manage when he takes office in January. And in this context, Mr Trump is likely to see ICC warrants as important transactional cards.
On instinct, too, Mr Trump may be torn. At war with the judiciary at home, and a long-time critic of transnational institutions, it is hard to imagine he has much love for the ICC. Indeed, his administration imposed sanctions on it during his last term. And Mike Waltz, his pick for national security advisor, said on Thursday the court should expect “a strong response to the anti-Semitic bias of the ICC and United Nations come January”.
On the other hand, the president-elect has called on Israel to end the war in Gaza and “stop killing people” several times over in the last year to no avail. That positioning is credited with winning votes from Arab Americans in November – voters he will want to reward, or at least not immediately alienate. It also seems heartfelt.
“I think Israel made a very big mistake,” Mr Trump told an Israeli newspaper in April, describing the bombing of civilian apartment blocks in Gaza.
“I wanted to call and say don’t do it. These photos and shots. I mean, moving shots of bombs being dropped into buildings in Gaza. And I said, oh, that’s a terrible portrait. It’s a very bad picture for the world. The world is seeing this… every night, I would watch buildings pour down on people.”
In Europe, politicians were also treading carefully. The EU’s top diplomat, Josep Borrell, said the ICC’s decision should be respected and implemented, while a spokesperson for Sir Keir Starmer said: “We respect the independence of the International Criminal Court.”
Unfortunately for Mr Netanyahu and Mr Gallant, that sort of political ambivalence may be all that is needed to keep them grounded, or at least on flight paths that avoid the airspace and runways of all 124 ICC member states.
In the UK, Canada, much of Asia and most of Western Europe, the courts are still independent of government, and they play a very long game. In all these jurisdictions, eagle-eyed magistrates will be watching flight schedules, waiting for the opportunity to strike – as Chile’s general Augusto Pinochet found out on a brief trip to London back in 1998.
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