CHRIS STEPHEN: Netanyahu Arrest Warrant Puts International Court on Collision Course with Trump

Indictment restricts PM’s travels and could invite US action against ICC

By Chris Stephen

After months of delay, the International Criminal Court in The Hague today indicted Israeli Prime Minister Benjamin Netanyahu for war crimes and crimes against humanity. Netanyahu becomes the first leader of a Western democracy indicted for war crimes, one reason why the case has such a massive profile.

It also sets the court on a collision course with America’s incoming Trump administration, which is almost certain to pass legislation sanctioning the ICC and possibly countries that support it. New Senate Majority Leader John Thune has slammed the allegations against Netanyahu as “outrageous and unlawful” and said sanctions legislation against the ICC will be “a top priority.”

Indicted with Netanyahu are his former defense minister, Yoav Gallant, and a Hamas leader, military chief Mohammed Deif. Two other Hamas leaders were in the original indictment request made public in May by ICC chief prosecutor Karim Khan, but they are confirmed dead. Israel claims Deif is also dead, but as the body was never recovered the ICC has pressed ahead with his charges, also for war crimes and crimes against humanity.

The oddity of the indictments is that none are charged with the fighting itself, which has ravaged Gaza, with Hamas reporting more than 40,000 dead, many of them civilians. Instead, Netanyahu and Gallant are charged chiefly with blocking humanitarian aid and causing starvation, which is both a war crime and crime against humanity.

In Israel the charges against Gallant are viewed as ironic, as he was fired by Netanyahu on Nov. 5, largely for appearing to support an end to the war. Considered a pragmatist and a moderate domestically, he was the only senior Israeli government figure with wide public support and a direct line to Washington.

Deif, meanwhile, is charged with last year’s October 7 massacre which saw 1,200 Israelis killed and some 250 people, including foreigners and dual citizens, taken hostage. Most have been returned, in deals and in rescues, but about 101 are still missing, many presumed dead.

The ICC is not part of the UN, and as Israel is not a member of the court it is not obliged to hand over suspects. However, the immediate effect will be to severely limit travel plans for the prime minister, as the 125 ICC member states are in theory obliged to hand over suspects arriving on their soil. This may extend also to their travel through airspace, notably of European Union countries, all of whom are members.

Potentially, ICC member countries could decide on sanctions on Israel for failing to hand over the suspects.

Palestine, as an ICC member, is obliged to hand over suspects, but the Palestinian Authority, which the ICC recognizes as the official government, can point out that it has no practical authority in Hamas-dominated Gaza. Deif, if still alive, would however face the same travel restrictions in ICC states as the Israeli suspects.

Could any of this be reversed?

Once issued, an ICC indictment is for life. The countries that control the ICC have no powers to overrule the judges or get indictments cancelled – but there do exist some routes to expunging the warrants.

First, if Israel investigates the same crimes, the ICC can drop its own charges, and has done so for other investigations in the past.

Second, although the ICC is not a UN member, it has granted the UN’s Security Council the power to freeze cases, citing the interests of peace and security. Such a freeze has never happened, although the Council considered it to block the ICC’s Sudan investigation in 2009. Such a freeze would need support from all five of the permanent members of the Council; Britain, China, France, Russia and the United States. A single objection would prevent the freeze, which is only for 12 months, renewable indefinitely.

Theoretically, Israel could challenge the evidence presented to back the indictment. If that evidence was proved to be fabricated, ICC judges have the power to cancel the indictment. However, much of the evidence comes from statements by Netanyahu and Gallant themselves, and judges are likely to agree that while guilt could only be determined at a trial, the “reasonable case” threshold has been achieved. 

This is a case that has been wreathed in controversy from the start. Palestine was accepted in the ICC in 2015, but the court dragged its feet in investigating the war of the year before, as the new member requested. To the fury of some Palestinians, the court did not open an investigation for nine years, and then only when spurred by the current war.

Khan caused further rancor by announcing whom he wanted indicted in May, breaking with normal practice of keeping indictment requests secret unless they are confirmed by judges. 

At the time, he said Netanyahu and Gallant should be suspects because aid was cut off for prolonged periods to Gaza at the start of the war. He coupled that with statements from both Netanyahu and Gallant declaring that the aid was being deliberately cut. Put the two together, and he said there were reasonable grounds to believe aid had been deliberately denied. Today, the judges at The Hague agreed with him.

However, the indictments come with a cloud hanging over the court involving sexual harassment allegations levelled against Khan. Whistleblowers are claiming he harassed a female junior member of his staff over a twelve-month period, and that he later urged her not to report him. Khan has denied the allegations, promising cooperation with an investigation expected to be announced in December by the ICC’s governing body, the Assembly of States Parties. Khan has also pointed out that the alleged victim herself has refused to give evidence, declining an offer to do so when the ICC held an internal inquiry in May.

Added tension has come from allegations made by anonymous court officials, reported by the British Guardian newspaper and two Israeli media sites in May, that the Mossad spy agency was trying to intimidate the court. 

The allegations claim Israel’s intelligence agency monitored communications from Palestinian groups to the court, and that its chief, Yossi Cohen, appeared uninvited at a meeting with a former chief prosecutor trying to influence her judgement. Israel issued a partial denial of the charges, while Cohen issued no comment, leaving relations frosty between Israel and The Hague.

The indictments also mark a defeat for Israel’s legal challenge against the ICC’s right to investigate its officials. Although Israel is not a court member, the court has jurisdiction over actions in all its member states, even if the actions are by foreign states. The ICC insists it has jurisdiction over Israeli forces in Palestinian territory in the same way it has jurisdiction over Russian forces operating in Ukraine.

Israeli lawyers have also questioned the recent appointment, to the panel of judges that issued the indictment, of a member who until last year worked for Khan, citing a conflict of interest. Indeed, there is disquiet also in some legal circles about the decision of the countries who control the court deciding to move a prosecutor so quickly into the ranks of judges’ chambers. The judge would be privy to working methods and evidence collected by prosecutors, presenting a potential conflict of interest.

Just yesterday, the judge, Slovenian Beti Hohler, issued a statement on the ICC website insisting that although she worked for Khan until late last year, she had no involvement in the Palestine investigation: “I was never assigned any duties with regard to the Palestine Situation whilst I was a staff member of the OTP.”

The diplomatic ramifications of the indictments are in part because the ICC may have indicted additional Israeli officials: Prosecutors frequently indict in secret, so-called “sealed warrants”, in the hope that officials will unknowingly travel to an ICC state where they can be arrested. This is likely to be a bar to travel for a swath of Israeli political and defense officials, along with other senior Hamas figures outside the country.

A handful of ICC member states, notably Britain, have also called for the court to have a rethink about the indictments. The former British Conservative government had launched an unsuccessful challenge on jurisdiction grounds, which was withdrawn when the Labour administration assumed power in July.

Although ICC member states are in theory obliged to hand over suspects, a growing number are refusing. Last month, Mongolia refused to hand over Vladimir Putin, indicted by the court two years ago. In 2017 South Africa refused to arrest Sudan’s president at the time, Omar Al Bashad, despite his being indicted by the court for genocide. In what is seen as a landmark ruling, Hague judges noted that South Africa was the sixth member state to refuse to arrest a suspect, and decided no punitive action should be taken. This may encourage ICC members to ignore their obligations with visiting Israeli or Hamas leaders.

The United States is likely to do more. Opposition to ICC jurisdiction is one of the country’s few remaining bipartisan issues. President Joe Biden criticized Khan in May for calling for Netanyahu’s indictment, alleging that put Israel in the same category as Hamas.

Now it is likely to ramp up punitive action against the court. In his first term, Trump banned the ICC chief prosecutor from visiting US territory and imposed limited financial sanctions on the court.  Biden later lifted the ban, and refused to back a Republican bill passed a few months ago by the House of Representatives, the lower house of Congress, mandating harsh sanctions against the court if it targets US allies. The legislation did not mention Israel specifically, but gave a president the power to declare sanctions if he  determined an ally is being targeted.

The incoming Republican-dominated Senate, and Trump himself, are likely to pass a version of this bill. It builds on legislation already passed in which the US reserves the right to impose sanctions, cancel foreign aid, and impose banking restrictions on any state arresting an American ICC suspect. This legislation may now extend to any ICC country which does not issue a declaration that it will not arrest Netanyahu – a potential headache for many of the smaller ICC members.

Chris Stephen is author of The Future of War Crimes Justice, published in 2024 by Melville House (London and New York) and Judgement Day: The Trial of Slobodan Milosevic (Atlantic Books, New York, 2005). He has reported for The Guardian, International Institute for Strategic Studies,  Petroleum Economist, and Counsel, the magazine of the Bar of England and Wales.