On November 21, the Pre-Trial Chamber of the International Criminal Court (ICC) announced it had issued warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu, his former Defence Minister Yoav Gallant and Hamas military wing commander Mohammed Diab Ibrahim al-Masri, aka Deif, who Israel says was killed in action.
It took six months for the Pre-Trial Chamber to make a decision on Prosecutor Karim Khan’s application for arrest warrants, and it took him no less than eight months after October 7, 2023, to file the petitions for these warrants. Before that, it took Khan’s predecessor, Fatou Bensouda, almost seven years to initiate an investigation into alleged Israeli war crimes in Palestine since 2014. Given the degree and scale of war crimes in Gaza before and after October 7, 2023, the sluggishness of the ICC is hard to understand or accept.
The Pre-Trial Chamber has indicated that it had “reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare”.
Judging by the space afforded to this charge in the ICC’s press release, humanitarian aid issues seem to be the principal charges against Netanyahu and Gallant. But considering the death toll – which may be as high as 186,000 – and the sheer devastation of Gaza’s overall infrastructure and specifically medical facilities and schools, it is troubling that “the Chamber found that the material provided by the Prosecution only allowed it to make findings on two incidents that qualified as attacks that were intentionally directed against civilians”. Just two incidents?
By contrast, the Pre-Trial Chamber was also able to conclude that Deif, the elusive Hamas commander, was “responsible for the crimes against humanity of murder; extermination; torture; and rape and other form of sexual violence; as well as the war crimes of murder, cruel treatment, torture; taking hostages; outrages upon personal dignity; and rape and other form of sexual violence”.
It is worth noting that the evidence provided by the prosecution allowed for such a list of crimes to be identified, and one in particular, “extermination” defined under Article 7.2.b. of the Rome Statute as “includ[ing] the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population”.
It is striking that “extermination” is not mentioned in respect of the charges against Netanyahu and Gallant, despite the fact that on January 26, the International Court of Justice concluded it was plausible that Israel’s acts could amount to genocide.
Is this another case of double standard or do different burden of proof standards apply? We do not know because the warrants are “secret”, but this question still needs to be posed nonetheless.
On the positive side, in and of itself, the ICC decision is historic, as for the very first time, it issued warrants for nationals of – politically speaking – a Western country. Intense pressures and threats from Israel, its friends and its protector-in-chief, the United States, did not shield the two principal members of Israel’s war cabinet from becoming fugitives.
Of course, the prospect of seeing Netanyahu and Gallant in the dock is quasi nil. For now, those seeking a modicum of justice would find solace in the symbolism the international warrants for the two Israeli leaders carry.
However, while justice will not be served soon enough to stop Israel’s genocidal aggression, a major threshold has been crossed: a powerful signal has been sent to all past and future perpetrators of crimes against Palestinians under occupation: from the Israeli president who declared that there were no innocent Palestinians in Gaza, to reckless cabinet ministers cheerleading a genocide; to generals ordering the bombing of women, infants, hospitals and schools, to TikTok-savvy privates gleefully executing war crimes.
The message is that the warrants are a harbinger of the end of impunity for Israel’s international crimes. Not because the ICC will prosecute such crimes, which are simply too numerous for an under-resourced court. But rather because the ICC’s historic decision will provide a new impetus for the prosecutions of war crimes under universal jurisdiction and obligations erga omnes.
These are obligations owed to the international community to prosecute individuals suspected of war crimes, crimes against humanity, genocide, and torture even if the prosecuting jurisdiction has no direct nexus with the imputed crimes.
In this regard, it is worth recalling a landmark case in which universal jurisdiction was invoked. A quarter century after committing horrific crimes in the wake of the 1973 CIA-backed coup d’etat in Chile, General Augusto Pinochet was arrested at a London hospital by Scotland Yard after Spanish Judge Baltasar Garzon had issued an international warrant for his arrest.
Following a 503-day-long legal battle, which ended with Home Secretary Jack Straw overruling on “humanitarian grounds” a British court’s decision to grant Spain’s extradition request, Pinochet, 83, was released from detention and flown back to Chile. Garzon’s trailblazing move was nonetheless a milestone in international criminal law as it successfully tested the applicability of the principle of universal jurisdiction with respect to gross violations of human rights.
Similarly, former US President George W Bush called off a visit to Switzerland in 2011. Officially it was because of planned protests further to his admission that he had authorised the use of waterboarding against foreign detainees. But a “Pinochet moment” loomed large in the trip cancellation. Amnesty International warned Swiss authorities that “an investigation [into Bush’s alleged crimes] would be mandatory under Switzerland’s international obligations if President Bush entered the country”.
Senior Israeli officials, such as former Prime Minister Ehud Olmert, former Deputy Prime Minister and Minister of Foreign Affairs and of Justice Tzipi Livni, and former Vice Prime Minister Moshe Ya’alon cancelled trips to the UK, Switzerland or Belgium for fear of arrest in connection with alleged war crimes.
These examples, as well as past and active cases prosecuted in various courts under the principle of universal jurisdiction, suggest that this relatively new concept in international criminal law is making headway.
Ironically, although the roots of “universal jurisdiction” are to be found in connection with piracy on the high seas, it is Israel which first invoked that principle in the modern era for its kidnapping from Argentina and subsequent trial in 1961 of the infamous senior Nazi officer Adolf Eichmann.
Now that a warrant of arrest for their longest-serving prime minister has been issued, boarding a plane from Tel Aviv will become a hazardous proposition for Israelis suspected of war crimes, if they realise that they might be arrested upon arrival.
As far as Netanyahu himself is concerned, his plane can still take off but it remains to be seen where it can land, and the airspace of which countries it can use. He may daydream of a “Greater Israel” and a beach house on the Gaza shore, but his own world has shrunk significantly, now that he is a fugitive.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.
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