The ICC’s Israel arrest warrants have backfired

Countries' rights to grant immunity basically defangs the court's indictments

By Chris Stephen and Dan Perry

The International Criminal Court’s decision to issue arrest warrants against Israeli leaders appears to have badly backfired. The court is now confronting a growing list of member countries weighing grants of immunity to the Israeli officials and the threat of punishment from the incoming U.S. presidential administration of Donald Trump.

At a Dec. 2 meeting of the court’s 124 member nations, the atmosphere was one of emergency. There was a clear sense that the indictments of Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, for their actions in the war against Hamas in Gaza, have exposed such glaring vulnerabilities that the institution is itself in danger. 

The problem that has been exposed is that the court needs its member countries to agree to make its arrests, and a growing list of European countries don’t want to do it.

But there is also a larger issue that bedevils all global institutions: The idea that countries should hand over authority to bodies they cannot control sits badly with many. That idea — which lies at the heart of the very notion of international law — has run into trouble with US Republicans especially. They feel America is in danger of being ensnared in a web of global institutions, from the International Monetary Fund to the World Health Organization, that is inching towards a  ”global government.”

This fear has been turbo-charged by the ICC, in the eyes of its critics, taking sides in the world’s most intractable war. Its decision to charge top Israeli figures is not balanced by equal indictments against Hamas. Only one Hamas leader, Mohammed Deif, has been charged with the massacre and hostage-taking of Oct. 7, and he is most likely dead.

As a result, the court is facing a head-on collision with the incoming Trump administration. During his first term, Trump imposed sanctions against the ICC’s chief prosecutor and is likely to do so again. And his allies in Congress plan on doing more.  Senate Majority Leader John Thune (R-S.D.)  —  who called the arrest warrants “outrageous and unlawful”  — has promised Senate passage for a House-passed bill requiring wider sanctions on the ICC.

And the true hammer blow for the court could come from a second piece of legislation, which Sen. Lindsey Graham (R-S.C.)  has vowed to get to the president’s desk. That bill would impose sanctions against any country that fails to give arrest immunity for the Israeli suspects. It is this legislation that threatens to cripple the court, perhaps extinguishing it forever. Graham has made no bones about the sanctions threat against even America’s key allies, should they fail to comply. 

“To any ally — Canada, Britain, Germany, France — if you try to help the ICC, we’re going to sanction you,” Graham told Fox News. 

ICC officials are taking him seriously. 

“The court is being threatened with draconian economic sanctions by another permanent member of the Security Council, as if it was a terrorist organization,” protested ICC president Tomoko Akane in a speech to the representatives of the member nations.

Central to the crisis is the little-understood Article 98 of the court’s founding statute, which provides member states with the ability to grant immunity to officials from other nations. Intended to balance state sovereignty with international justice, it means the member states have a painless way of granting the arrest immunity America will shortly be demanding, simply by lodging an Article 98 declaration.

France has already taken advantage of this loophole, declaring that, while it adheres to its ICC obligations, it is also giving Israelis immunity. Italy, Hungary and Greece have followed suit, and more countries, including Austria, Australia, Argentina, the Czech Republic and the Netherlands are considering it.

The tactics, which may now shield Netanyahu, were honed two decades ago by the United States to protect its own officials from ICC prosecution.

In 2002, as the ICC opened its doors, the Bush administration demanded Article 98 immunities for American personnel, threatening aid cuts to noncompliant countries. Defense Secretary Donald Rumsfeld even threatened to move NATO’s headquarters out of Brussels unless Belgium gave war crimes immunity for U.S. personnel stationed there. 

The Nethercutt Amendment formalized these threats, and dozens of states acquiesced, granting the U.S. sweeping protections. 

The European Union also capitulated, granting limited immunity to U.S. personnel stationed in Europe.

With Trump almost certain to sign Graham’s legislation, U.S. allies know they will face the prospect of economic sanctions, coupled with the withdrawal of military cooperation unless they give Israel immunity. Across the chanceries of Europe, the fear is that if they don’t cooperate, it may speed Trump in decoupling America from NATO.

Some states — notably Socialist-governed Spain — have rejected the idea of immunity outright. But Germany and Great Britain, two of the ICC’s key funders, are staying firmly on the fence. Each has issued a careful declaration, mimicking that of France, that they will abide by their international obligations, but avoiding saying whether, within the law, they will follow Paris in granting the Israelis immunity.

The fear in The Hague is that if high numbers of states bow to Trump’s pressure and grant Israel its immunities, there will be contagion with other cases.

Several African countries that host Russia’s Wagner mercenaries might like to offer Article 98 immunity for Vladimir Putin, charged with crimes against humanity by the court last year. Mongolia already gave Putin that immunity for a recent state visit, without bothering to issue an Article 98 declaration, and also without being penalized by the court.

For the judges, the nightmare is that each new indictment triggers a wave of immunities from allies of their suspect, rendering the court impotent to enforce its rulings.

Adding fuel to the fire is the perception of bias in the ICC’s handling of the Gaza conflict. While Netanyahu and Gallant face a litany of charges, including attacks on civilians, starvation and deprivation of essential services, Hamas has largely escaped accountability.

Originally, there were three Hamas leaders in the court’s crosshairs, but two are confirmed dead and the court has been unable to obtain, despite strenuous efforts, proof of life for the third, Deif.

A more cautious panel of judges would have required the chief prosecutor Karim Khan to find new Hamas suspects, rather than issue indictments weighted against Israel.

This perceived imbalance has reinforced Republican cries that the ICC has been co-opted by global leftist movements, targeting Western allies while turning a blind eye to offenses by their adversaries.

Certainly, the court has behaved erratically, throwing resources at the Gaza case while neglecting other wars. For example, it has been investigating the Taliban in Afghanistan ever since 2003, yet has never issued a single indictment.

Its critics can also point to the court’s ineffectiveness. After 22 years of existence, with more than $3 billion spent, it has achieved only six war crimes convictions, a pathetic record for a court that claims to be the summit of human rights law.

Some think the court has accepted its fate. It was noteworthy that this week’s annual meeting passed without support from the leaders of its member nations, at the very moment it most wanted their commitment.

If those states capitulate in granting immunities, now for Israel, later for other countries, they will effectively pull the plug on the court. It will remain alive, but sidelined, partly the victim of external forces, but partly also as the architect of its own demise.

Chris Stephen is the 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).