Netanyahu, the ICC, and Israel’s Missed Legal Defense

The International Criminal Court (ICC) has taken an unprecedented step in the Israeli-Palestinian conflict by issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu, former Defense Minister Yoav Gallant, and Hamas leader Mohammed Deif. This momentous decision underscores the Court’s effort to confront grave violations of international law and challenges claims that it operates with bias. Netanyahu and Gallant are accused of war crimes and crimes against humanity for their roles in Gaza, while Deif faces charges stemming from the October 7, 2023, attacks on Israeli civilians. These warrants reflect the ICC’s attempt to hold leaders accountable for atrocities on both sides of the conflict, even in one of the world’s most polarizing disputes.

The details of the ICC’s decisions remain confidential, but the information disclosed reveals the scope and gravity of the alleged crimes. Netanyahu and Gallant are accused of policies that deliberately deprived civilians in Gaza of essential resources, including food, water, and medical supplies, amounting to starvation as a method of warfare. Deif is charged with orchestrating a coordinated assault that resulted in mass killings, hostage-taking, and widespread sexual violence. By targeting individuals at the highest levels of government and military command, the ICC emphasizes its commitment to addressing impunity, even in politically charged conflicts.

At the heart of this decision lies the Rome Statute, the legal framework underpinning the ICC. Established in 1998, the Rome Statute authorizes the Court to prosecute individuals for genocide, war crimes, crimes against humanity, and the crime of aggression. While Israel is not a member of the ICC, Palestine’s 2015 declaration accepting the Court’s jurisdiction opened the door to investigations within its claimed territories, including Gaza, the West Bank, and East Jerusalem. Israel’s repeated challenges to the Court’s jurisdiction—most recently under Articles 18 and 19 of the Rome Statute—have been rejected, reaffirming the ICC’s authority to act.

The ICC operates on the principle of complementarity, stepping in only when national courts are unwilling or unable to prosecute. However, its mandate extends beyond legal formalities; it seeks to bring justice to victims and signal that even powerful leaders are not above the law. Yet, the ICC’s authority is not without limits. The Court lacks enforcement mechanisms and relies on state cooperation, which can be influenced by political and diplomatic considerations. These challenges highlight the paradox of the ICC’s authority: it derives its legitimacy from its independence but depends on the cooperation of the very states it seeks to hold accountable.

Netanyahu and Gallant are charged for their roles in policies and decisions that reportedly exacerbated Gaza’s humanitarian crisis between October 8, 2023, and May 20, 2024. The ICC alleges that severe restrictions on essential resources—including food, water, and medical supplies—constituted the war crime of starvation as a method of warfare. These actions allegedly led to widespread suffering and deaths, classified as crimes against humanity, including murder, persecution, and other inhumane acts. Despite international warnings, the policies implemented under their leadership reportedly prioritized strategic goals over the survival of Gaza’s civilian population. The ICC emphasized that decisions to permit or increase humanitarian aid to Gaza during the conflict were often conditional and insufficient to meet the population’s essential needs. These measures, according to the Chamber, were not taken to fulfill Israel’s obligations under international humanitarian law but instead as responses to international pressure, particularly from the United States. Despite repeated warnings from the UN and other organizations about the catastrophic humanitarian situation, minimal assistance was authorized, with no clear military justification for the severe restrictions on humanitarian relief. Crucially, it was Netanyahu’s own statements linking the withholding of essential goods to Israel’s war objectives that reinforced the ICC’s findings.

As in the ICJ case, the words of Israeli officials, particularly Netanyahu himself, have significantly contributed to framing the case for alleged violations of international law, further entangling Israel in ICC proceedings and undermining potential defenses.

Deif, as the military commander of Hamas, faces charges for planning and executing the October 7, 2023, attacks on Israeli civilians. These attacks, marked by mass killings and abductions, are alleged to include the war crimes of murder, hostage-taking, and outrages upon personal dignity, as well as crimes against humanity such as torture, rape, and sexual violence. The Prosecution had also requested arrest warrants for Ismail Haniyeh and Yahya Sinwar, two other senior Hamas leaders. However, these warrants were withdrawn after their confirmed deaths. In Deif’s case, the situation is more ambiguous. While Israel claims to have eliminated him, Hamas has neither confirmed his death and no body has been recovered. Due to this uncertainty, the Court decided to issue an arrest warrant to ensure accountability should Deif be alive. The charges emphasize his leadership role and command responsibility for a systematic campaign targeting civilians during the conflict.

Israel attempted to challenge the ICC’s jurisdiction and the scope of its investigation. The first challenge, under Article 19(2) of the Rome Statute, contested the Court’s authority, arguing that Palestine’s disputed statehood invalidated its referral. However, the ICC reaffirmed its jurisdiction, pointing to Palestine’s 2015 accession to the Rome Statute. The second challenge, under Article 18(1), sought to compel the Prosecution to issue a new notification, claiming that the investigation had expanded. This request was also denied, as the Court found the investigation’s scope unchanged and noted that Israel had previously declined to defer the investigation when given the opportunity.

The ICC’s rejection of Israel’s challenges highlights the Court’s strict adherence to its jurisdictional framework and procedural integrity. However, these rulings also underscore a deeper issue: the principle of complementarity, which lies at the heart of the Rome Statute. Complementarity ensures that the ICC acts as a court of last resort, stepping in only when national judicial systems are either unwilling or unable to genuinely investigate and prosecute alleged crimes.

Under Article 17 of the Rome Statute, the ICC defers to domestic courts unless those proceedings are found to shield individuals from accountability, lack independence, or fail to genuinely address the crimes in question. Similarly, “inability” arises when national systems are compromised due to systemic failure or state collapse. This principle respects state sovereignty, empowering domestic systems to lead the pursuit of justice while limiting the ICC’s intervention to situations of impunity.

In Israel, the Commission of Inquiry Law of 1969 provides the framework for establishing investigative committees in Israel to address issues of critical public importance. Such commissions are appointed by the government, with the mandate defined at the outset and subject to modification during the investigation. Their composition includes at least three members, led by a chairperson appointed by the President of the Supreme Court, often a judge of the Supreme Court or a retired judge. The committees operate independently, setting their own procedures and gathering evidence through summonses, witness testimonies, and other investigative means without being bound by formal rules of evidence.

The findings of a commission are presented in a detailed report to the government and can include recommendations. If the commission uncovers evidence suggesting criminal wrongdoing, it may recommend further investigation or prosecution by law enforcement or the judicial system.

Critically, if Israel had established such a commission to investigate not only failures leading to the October 7 attacks but also decisions made during the subsequent military operations, including humanitarian aid policies, it could have addressed the ICC’s complementarity principle. A robust investigation demonstrating genuine efforts to examine potential violations of international law would have negated the ICC’s jurisdiction, preserving Israel’s sovereignty while ensuring accountability. By not doing so, Israel left the door open for international scrutiny and ICC intervention.

This brings us to a critical question: what happens next? Under the Rome Statute, individuals with ICC arrest warrants can only be detained if a member state fulfills its obligation to cooperate, as stipulated in Article 89. Since the ICC lacks its own enforcement mechanism, it relies entirely on state cooperation to execute its mandates. This dependency reveals a significant limitation, especially in politically sensitive cases. Non-member states, such as the United States, are not bound by the Statute, adding another layer of complexity. Recent reactions highlight this challenge: Hungary, an ICC member, declared it would welcome Israeli Prime Minister Benjamin Netanyahu and defy the arrest warrant, while the U.S. criticized the Court’s decision outright.

This situation encapsulates the ICC’s “paradox of authority”. The Court’s legitimacy rests on its independence from political influence, yet its ability to act relies on the political will of states. In Netanyahu’s case, where geopolitical alliances and national interests dominate, this paradox becomes strikingly evident, undermining the ICC’s capacity to deliver justice in an impartial and enforceable manner.

While the Rome Statute does not mandate severing ties with nations whose nationals are subject to ICC warrants, it creates a legal framework that can lead to significant political and economic fallout. Article 86 obligates State Parties to “cooperate fully with the Court,” which includes executing arrest warrants, and Article 89 requires the surrender of individuals to the ICC if found within their jurisdiction. Failure to comply can result in referrals to the Assembly of State Parties or the UN Security Council under Article 87(7), potentially escalating international pressure.

Although Israel is not a party to the Statute, the arrest warrants for Netanyahu and Gallant have already heightened international scrutiny. Some speculate these actions could lead to calls for a weapons embargo against Israel, mirroring past cases where ICC actions influenced global diplomatic responses. While such measures are not explicitly dictated by the Rome Statute, the symbolic weight of the warrants often shapes political decisions among member states and allies. This underscores the far-reaching implications of ICC actions: legal proceedings do not occur in isolation but ripple into the political and diplomatic spheres, generating consequences that extend well beyond the courtroom.

This is not the Dreyfus trial. Unlike Captain Dreyfus, who was a victim of fabricated evidence and systemic prejudice, the case against Netanyahu is rooted in credible evidence, including his own statements linking humanitarian restrictions in Gaza to military objectives. Moreover, international organizations and states—most notably the United States—repeatedly warned about the humanitarian crisis in Gaza, yet little meaningful action was taken to alleviate the situation. Lastly, this case could have been avoided entirely if Israel had convened a commission of inquiry under its own law to investigate the army’s actions in Gaza, as such an effort would have rendered the ICC’s jurisdiction inadmissible.

What happens next remains uncertain. Netanyahu may never face arrest, or Israel could face sanctions and further isolation as a result of these proceedings. One thing is clear: since October 7th, Israel has squandered much of the international goodwill it initially received in the wake of Hamas’s attacks. Within a year, it finds itself increasingly isolated from the Western world, its hopes pinned on Donald Trump returning to power and shielding it from ICC consequences.

Screaming “lawfare” and “antisemitism” is insufficient. Israel has the tools to defend itself at the ICC by approving a credible inquiry commission that investigates its own military actions. This would not only nullify the ICC’s case but also strengthen Israel’s moral standing by showing it takes accountability seriously—something the Palestinians are far less likely to do. However, this political decision is unlikely, as such a commission might be as “antisemitic” towards Netanyahu as the ICC itself.