ICC issues arrest warrants for Netanyahu, former defence minister Gallant for alleged Gaza ‘war crimes’

The International Criminal Court has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, the tribunal in The Hague announced on Thursday afternoon.

The court’s Pre-Trial Chamber I “issued warrants of arrest for two individuals, Mr. Benjamin Netanyahu and M.r Yoav Gallant, for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024, the day the Prosecution filed the applications for warrants of arrest,” it confirmed in a statement.

In a separate statement, the court ordered the arrest of Mohammed Deif, the supreme commander of Hamas’s military wing, who according to the Israel Defense Forces was killed in an airstrike on July 13.

The court said it had found reasonable grounds to believe that Netanyahu and Gallant “each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”

The Chamber said that there were also “reasonable grounds to believe that Netanyahu and Gallant bear responsibility for the war crime of intentionally directing attacks against the civilian population,” though it noted that ICC Chief Prosecutor Karim Khan had only provided information about two incidents that the court said were directed against civilians.

The Hague rejected Jerusalem’s challenges regarding jurisdiction, claiming that the court can exercise its authority based on the Palestinian Authority’s membership. It also ruled that countries are not entitled to dispute the ICC’s jurisdiction before the issuance of arrest warrants.

Regarding Deif, the court said it had “reasonable grounds to believe that senior leaders of Hamas, comprising at least Mr Deif, Mr [Yahya] Sinwar, and Mr [Ismail] Haniyeh, agreed to jointly carry out the 7 October 2023 Operation.”

Khan had initially filed for warrants against former Hamas political leader Haniyeh and Hamas terrorist chief in Gaza Sinwar but dropped the legal proceedings after their deaths on July 31 and Oct. 16, respectively.

Roughly 1,200 civilians were murdered by Hamas-led terrorists on Oct. 7, 2023. Thousands more were wounded and 251 others were taken into the Gaza Strip.

The ICC has no jurisdiction over Israel as Jerusalem is not a signatory to the Rome Statute, which established the court. But in a legalistic sleight of hand, the court has asserted jurisdiction by accepting “Palestine” as a signatory in 2015, even though no such state is recognized under international law.

The 123 countries that are signatories to the Rome Statute are obligated to act on any arrest warrant it issues, raising the possibility that Netanyahu and Gallant could be placed under arrest while visiting these places.

“It’s a geopolitical bombshell. It’s the first time the court has issued arrest warrants against a Western country and also the first time that they are issuing arrest warrants when there’s no jurisdiction in the case, but they’ve invented it for themselves,” NGO Monitor legal advisor Anne Herzberg told JNS, adding that it was “outrageous.”

Based in Jerusalem, NGO Monitor is a pro-Israel research institute that scrutinizes non-governmental organizations claiming to be advancing human rights agendas.

Herzberg said that the ICC’s decision should be placed in a political context given the results of the recent U.S. election, which put skeptical Republicans in charge of the executive and legislative branches of government.

“Clearly, I believe the court acted because they know the Trump administration’s coming in a few weeks and it’s going to have an incredibly hostile stance toward the court,” she said, noting that Senate leaders had issued a statement on Wednesday to the effect that they were considering sanctions against the court.

“So I’m sure they’re trying to get as much done [as possible] before Trump takes over. So I think we have to look at it in those respects,” said Herzberg, who co-authored an amicus submission to the ICC in the prosecutor’s case against Netanyahu and Gallant.

She said the decision must also be examined in terms of its potential consequences for the 101 hostages still being held by Hamas in Gaza.

“Is this going to make a hostage deal now even more unlikely? Because again, putting all the pressure on Israel, there’s no pressure on the other side, there’s no pressure on Iran, nothing happens to these countries, to Iran, to Qatar, for supporting Hamas. And they’re placing all the blame on Israel. So again … we see these international institutions that are basically enabling a terror war against Israel,” she said.

While stressing that it is not likely that Netanyahu and Gallant will actually be arrested, the warrants have severe implications because the two men won’t be able to travel to Europe for fear of arrest.

“Not only does this have importance for [Israel’s] national security, but it also … for NATO, because you can’t have in-person meetings now. And even if these countries, you know, hate [Netanyahu] and are anti-Israel, they have to start thinking about what the implications are for their campaigns against Russia or China if you can’t have Israeli security cooperation in person,” Herzberg told JNS.

“And I think the other big implication is that other individuals that are involved in the Israeli government or the Israel Defense Forces are also now going to be limited in where they can travel because a lot of times there are requests made for warrants that aren’t made public in advance. So it could be there are other individuals the prosecutor asked to indict, and so we don’t know now what the outcome of that is or other people they’re considering. So this is not only hampering, again, Israel’s national security interests, they are interfering with the national security of the entire Western world,” she added.

Eugene Kontorovich, professor at the George Mason University Scalia Law School, and director of the international law department at the Kohelet Policy Forum, a Jerusalem think tank, told JNS: “An illegitimate court issued arrest warrants against a non-state member, on behalf of a non-existent state, for fake crimes based on unsubstantiated reports.

“To give it a veneer of ‘even-handedness,’ the court issued a warrant against an arch-terrorist eliminated four months ago,” he added.

“It’s time for Israel to pass an act barring all cooperation with the ICC and sanction Israeli organizations that pass information to the Court. Israel’s allies should sanction this illegitimate court,” Kontorovich said.

Avi Bell, a law professor at the University of San Diego and Bar-Ilan University, told JNS: “This is the culmination of a 15-year process, a collaboration between the ICC and the PLO [Palestinian Liberation Organization] to bring up Israelis on fake charges. And the only reason I hesitate saying the word ‘culmination’ is because it’s not the end. They’re going to keep going and bringing further charges against more Israelis as we go along.”

It has nothing to do with legal developments, but only political ones, that is, the court wants to have “Jewish Israeli defendants,” Bell said.

He noted that the court’s timing was peculiar, given that the ICC prosecutor is accused of sexual misconduct and trying to suppress those claims, and Israel questioning the impartiality of an incoming judge on the panel, who came from the prosecutor’s office.

Bell suggested the decision to push ahead with the indictments might have to do with the victory of President Donald Trump, or it could be connected to the fact that the ICC is eager to appear impartial and knows there’s a limited timeframe in which it can use Deif as a fig leaf, given that he is likely dead. Bell noted that Hamas, in fact, admitted Deif died two weeks ago.

As to what Israel can do, Bell said that the strategy should be one of total non-cooperation and that one of the reasons it’s in “this mess” is that it has not followed that strategy.

“It has to pass the equivalent of the American what critics call the Hague Invasion Act [formally the American Service-Members’ Protection Act],” Bell said.

In other words, Israel should not only forbid cooperation with the court but threaten “to liberate any Israeli, who is taken into custody by force, if necessary,” and to define collaboration with the ICC as collaborating with attempted kidnapping “and to punish it criminally.”

“Israel should be very, very aggressive in its moves against the court. It should have been very aggressive years ago,” Bell said.

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