The ICC arrest warrants in the Palestine Situation: double standards, limitations and opportunities
By Alessandra Spadaro
Published on 11 December 2024
On 21 November 2024, Pre-Trial Chamber I of the International Criminal Court (ICC) issued the first arrest warrants for crimes committed in the Situation in the State of Palestine. The warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and former Israeli Minister of Defence Yoav Gallant concern charges of war crimes and crimes against humanity. The Prosecutor also charged Hamas commander Mohammed Diab Ibrahim Al-Masri (known as Deif) with war crimes and crimes against humanity. Unable to confirm reports of Deif’s killing by Israeli forces, the judges also issued a warrant against him. Because he is likely dead, this post focuses on the former two warrants. It starts by offering some reflections on their reception by some ICC member states. The post also highlights the limitations of the warrants and of the potential resulting proceedings, as well as opportunities that arise from them outside the ICC.
Double standards
The warrants mark a turning point towards accountability for some of the crimes committed in Palestine. They also have an important symbolic connotation. Since the entry into force of the Rome Statute, the ICC has only successfully prosecuted a handful of African men, all members of rebel groups. The actions of British forces in Iraq and those of NATO in Libya were not investigated. Crimes committed (e.g. by US forces) outside the territory of Afghanistan were excluded from the scope of the Prosecutor’s investigation into the Afghanistan Situation, although this decision was later reversed. Now, for the first time, the ICC is seeking the arrest of high-ranking officials of a state which is depicted as democratic and is closely allied with, and staunchly supported by, powerful Western states. This could be seen as an early indication that the ICC might finally be ready to ‘speak law to power’.
Whereas the ICC took a step forward in the direction of fighting impunity for core international crimes regardless of who may have committed them, some of its member states were quick to take two steps backwards. A tracker of state reactions shows that twenty-seven ICC member states (all European, in addition to Australia, Canada, Argentina and Paraguay) have alternatively contested the warrants, not committed to enforcing them, or committed to enforcing them without expressing support for the Court. Conversely, Western states were the overwhelming majority of those that reacted positively to the arrest warrants against sitting Russian President Vladimir Putin and Commissioner Maria Alekseyevna Lvova-Belova, issued by the ICC in March 2023. The double standards tainting these contrasting responses are glaring in the case of France. In September, France asserted that Mongolia, as a party to the Rome Statute, had to arrest Putin when he visited the country. Now, France claims that the immunities of Israeli government officials will have to be considered before arresting them.
The issue of the immunity of high-ranking representatives of states that are not parties to the Rome Statute has been addressed by the ICC in several decisions concerning the arrest warrants against (former) President of Sudan, Omar Al-Bashir, and against President Putin. Based on various reasonings, the ICC case law has concluded that member states have an obligation to enforce warrants against third-state officials. The most persuasive and authoritative argument in support of this position is that, under customary international law, immunities do not apply vis-à-vis international courts. This is in line with the International Court of Justice (ICJ)’s findings in the Arrest Warrant case and with the Special Court for Sierra Leone’s decision concerning the indictment of then-Head of State of Liberia, Charles Taylor.
Although some commentators remain unconvinced, for ICC member states this matter should be settled: the arrest warrants must be enforced. The selective backing for the work of the Court is a worrying sign of the wavering commitment of some member states to the project of international criminal justice, which can have detrimental effects on the credibility of the legal regime and the functioning of its institutions. That this is a tangible danger, which can jeopardize the ICC’s ability to fulfil its mission, becomes clear when one considers that the states objecting to the warrants against Israeli officials are among the largest contributors to the Court’s budget. At the same time, governments planning to not enforce the warrants should be mindful of the legal and political crises that this might generate at the domestic level.
Justice for Palestinians?
Should ICC member states, given the opportunity, honour their obligation to arrest Netanyahu and Gallant, the subsequent ICC proceedings have only limited ability to bring justice to Palestinians.
The ‘bothsideism’ characterizing the Prosecutor’s approach to the applications for arrest warrants against both Palestinian and Israeli leaders did not go unnoticed. Whereas the ICC’s jurisdiction over the Palestine Situation dates back to 13 June 2014, warrants were only requested – and obtained – for crimes committed on and since 7 October 2023. Although the criminal nature of the 7 October attacks is undisputed, the Prosecutor’s choice effectively subordinates the victimhood of Palestinians to that of Israelis. It is only as a consequence of the latter that the former finally became somewhat relevant, in line with the prevalent racialization and othering of Palestinians. Well-documented crimes at the expense of hundreds of thousands of Palestinian victims, which would fall under the jurisdiction of the Court, including genocide, apartheid, and the myriad of crimes around the establishment of settlements, remain unaddressed.
The investigation continues and might result in amended charges and additional warrants. However, further pitfalls must be considered. The ICC is not an ad hoc court for Palestine: it has scarce resources to fight impunity for international crimes worldwide. Additionally, the crimes that fall under the temporal, material and territorial jurisdiction of the ICC represent only a fraction of the atrocities committed against Palestinians in over a century of colonial injustice. Indeed, the individualization of guilt underpinning criminal proceedings obscures the very systemic and colonial nature of these crimes.
Opportunities
With all their limits, the warrants nevertheless generate opportunities for legal and political action outside the ICC. Now that a panel of ICC judges has confirmed that there are ‘reasonable grounds’ to believe that Netanyahu and Gallant are responsible for war crimes and crimes against humanity, (ICC member) states have been definitively put on notice about the commission of atrocity crimes in Gaza, with consequences on domestic and international initiatives.
A variety of court cases have been filed with the aim to halt (military) support to Israel. For instance, Dutch courts are considering a case concerning the export of F-35 fighter jet parts to Israel and another seeking to obtain a ban to the export and transit of weapons (parts) and dual-use items, in addition to a ban to trade and investment relations that help maintain Israel’s unlawful presence in the Palestinian territory. The significance of the warrants for these types of cases became rapidly evident when the Global Legal Action Network and Al-Haq, which have been seeking to stop weapons exports from the UK to Israel, announced their intention to file an emergency injunction, pointing out that ‘the UK is now arming suspected war criminals who have been indicted by the world’s pre-eminent criminal court’.
According to the International Committee of the Red Cross (ICRC), ‘[f]inancial, material or other support in the knowledge that such support will be used to commit violations of humanitarian law’ is at odds with the obligation of states to ensure respect for the 1949 Geneva Conventions. The ICRC specifies that states should ‘refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions.’ The debated scope of the obligation to ensure respect is one of the core issues in Nicaragua v Germany before the ICJ. Although these cases and debates will not be settled anytime soon, the issuance of the warrants against Israeli government officials charged with serious international crimes makes the decision to continue providing support to Israel increasingly indefensible. Rather, the warrants add to the list of reasons in favor of the adoption of sanctions.
Finally, with Netanyahu and Gallant charged as co-perpetrators and civilian superiors, national authorities have a crucial role to play in investigating and establishing the criminal responsibility of other individuals, from foot soldiers to commanders, directly involved in the commission of atrocity crimes in Gaza. States have the obligation to search for and try ‘persons alleged to have committed, or to have ordered to be committed’ grave breaches of the Geneva Conventions, regardless of their nationality. Domestic courts may also prosecute other war crimes, crimes against humanity, and genocide on the basis of the principles of passive or active nationality and of universal jurisdiction, when municipal law allows.
Conclusion
Palestinians, perhaps surprisingly, remain hopeful and steadfast in their pursuit of justice, including through the ICC. Indeed, in spite of their mixed reception and intrinsic limitations, the arrest warrants are useful, to an extent, in support of other legal efforts at the domestic and international levels. This points to the emancipatory and counter-hegemonic potential of these accountability endeavours.
Dr Alessandra Spadaro works as Assistant Professor in Public International Law at Utrecht University, where she is affiliated with the Montaigne Centre for Rule of Law and Administration of Justice.