The Progressive American

While the ICC has yet to announce any official charges, recent reporting suggests that the ICC is about to strike.

Israeli officials are worried that some of their leaders could face criminal charges by the International Criminal Court. The New York Times, citing officials familiar with the matter, reported yesterday morning that Israeli officials believe that the ICC will bring charges against Prime Minister Benjamin Netanyahu and other officials associated with the Israel-Hamas war. While unlikely to result in any arrests, such a move could drastically alter the current war. 

What is the ICC?

The International Criminal Court (ICC) was established in 2002. Not to be mistaken with the International Court of Justice, the ICC seeks to investigate and prosecute serious crimes such as genocide, war crimes, crimes against humanity, and wars of aggression. It has 124 member states that recognize its authority, although several countries, such as the United States, India, Russia, and China, are not members of the international body. 

In the decades following World War 2, efforts were made to establish an international standard for dealing with crimes that exceeded the usual intra-national jurisdiction standards. From 1945 to 1946, over 20 Nazi officials and several organizations were tried for war crimes at Nuremberg, demonstrating a need for an international mechanism to hold such criminals accountable. The trial resulted in 161 convictions, and 37 were executed. Similarly, 11 countries joined together to establish a war crimes tribunal for Japanese war criminals between 1946 and 1948, which resulted in the conviction of 23 war criminals. Seven were executed, and sixteen were sentenced to life in prison. 

Despite these pushes for international justice and legal standards, tensions between nations and questions of jurisdiction, many of which remain unsolved, meant that until the early 2000s, the Court began to take shape as an organization with enforcement powers. Since then, the Court has increasingly become an integral but still developing part of holding serious criminals accountable. 

What Does this Mean for the Israel-Hamas War?

While 124 member states recognize the ICC’s jurisdiction, the relationship between the Court and Israel is complicated. While many countries recognize the authority of the ICC, Israel is not one of them and has previously stated that it will not cooperate with investigations by the ICC into its soldiers and citizens after ICC prosecutors announced plans to investigate war crimes in Palestine. 

On Friday, April 26th, 2024, Prime Minister Benjamin Netanyahu reiterated this position in a post, saying:

“Under my leadership, Israel will never accept any attempt by the ICC to undermine its inherent right of self-defense.

The threat to seize the soldiers and officials of the Middle East’s only democracy and the world’s only Jewish state is outrageous. We will not bow to it. 

Israel will continue to wage to victory our just war against genocidal terrorists, and we will never stop defending ourselves. 

While the ICC will not affect Israel’s actions, it would set a dangerous precedent that threatens the soldiers and officials of all democracies fighting savage terrorism and wanton aggression.”

The hostility to the Court’s jurisdiction comes amid the month-long war that emerged after October 7th, where Hamas killed an estimated 1,200 people and kidnapped over 200. Since then, Israel has waged a war to destroy Hamas but has repeatedly faced accusations of war crimes. In December of last year, The Washington Post published an exclusive alleging Israel used White Phosphorous made and provided by the United States. According to the Gazan Health Ministry, an estimated 34,000 people have died since the war began. 

If the ICC pursues charges against Israeli officials, as Israeli officials seem to believe, it could put Israel in a difficult position. While they would not be the only ones facing charges, as Hamas officials are also expected to face charges from the ICC, it would be damaging to Israel’s reputation. The ICC has rendered judgment against numerous officials, such as Muammar Gaddafi, Omar al-Bashir, and Vladimir Putin, establishing it as a prosecutor of some of the worst criminals and leaders.

If Israel were subject to charges, it would necessarily damage Israel’s reputation on the world stage and undermine the nation’s ability to wage war with good standing. More than that, however, charges by the ICC would mean that all 124 member states would be obligated to arrest any officials officials who face charges. While it is unlikely that ICC countries will attempt to retrieve alleged criminals within Israeli territory, it could limit the travel of said officials. Previously, when Russian President Vladimir Putin was charged with the abduction of Ukrainian children in the Russo-Ukrainian War and was forced to stay within allied territories to avoid arrest.

Additionally, the United States could see its relationship with the Court, which has been contentious and could further deteriorate. Previously, the Trump administration sanctioned several ICC officials, only for the Biden administration to rescind them.

While it remains unclear if the ICC will finalize and pursue charges against any Israelis, it would be one of the most transformative legal actions against Israel to date. However, until the ICC follows through or retractions are made, how the international community will react to the ongoing war remains uncertain. 

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References

“About the Court.” https://www.icc-cpi.int/about/the-court (April 29, 2024).

Benjamin Netanyahu – בנימין נתניהו [@netanyahu]. 2024. “Under My Leadership, Israel Will Never Accept Any Attempt by the ICC to Undermine Its Inherent Right of Self-Defense. The Threat to Seize the Soldiers and Officials of the Middle East’s Only Democracy and the World’s Only Jewish State Is Outrageous. We Will Not Bow to It. Israel….” Twitter. https://twitter.com/netanyahu/status/1783855474573492732 (April 29, 2024).

Bergman, Ronen, and Patrick Kingsley. 2024. “Israeli Officials Believe International Court Is Preparing Arrest Warrants Over War.” The New York Times. https://www.nytimes.com/2024/04/28/world/middleeast/netanyahu-icc-arrest-warrants-israel-hamas.html (April 29, 2024).

Blinken. 2021. “Ending Sanctions and Visa Restrictions against Personnel of the International Criminal Court.” United States Department of State. https://www.state.gov/ending-sanctions-and-visa-restrictions-against-personnel-of-the-international-criminal-court/ (April 29, 2024).

Borger, Julian. 2020. “Trump Targets ICC with Sanctions after Court Opens War Crimes Investigation.” The Guardian. https://www.theguardian.com/us-news/2020/jun/11/trump-icc-us-war-crimes-investigation-sanctions (April 29, 2024).

Corder, Mike. 2024. “What Is the International Criminal Court and Why It Has Israeli Officials Worried.” AP News. https://apnews.com/article/israel-hamas-gaza-international-criminal-court-hague-palestinians-1f683a6e2e150d91c415eb1d0a19a44d (April 29, 2024).

Corder, Mike, and Raf Casert. 2023. “ICC Issues Arrest Warrant for Putin over Ukraine War Crimes | AP News.” Associated Press. https://apnews.com/article/icc-putin-war-crimes-ukraine-9857eb68d827340394960eccf0589253 (April 29, 2024).

Ferragamo, Mariel, and Claire Klobucista. 2023. “The Role of the International Criminal Court.” Council on Foreign Relations. https://www.cfr.org/backgrounder/role-international-criminal-court (April 29, 2024).

Frayer, Lauren. 2023. “Israel Revises down Its Death Toll from the Oct. 7 Hamas Attacks to about 1,200.” NPR. https://www.npr.org/2023/11/11/1212458974/israel-revises-death-toll-hamas-attacks-oct-7 (April 29, 2024).

Haaretz. “What Happened on Oct 7: The Hamas Attack on Israel, Minute-by-Minute.” Haaretz. https://www.haaretz.com/israel-news/2024-04-18/ty-article-static-ext/.premium/what-happened-on-oct-7/0000018e-c1b7-dc93-adce-eff753020000 (April 29, 2024).

“Israeli Attacks Wipe out Entire Families in Gaza.” 2023. Amnesty International. https://www.amnesty.org/en/latest/news/2023/10/damning-evidence-of-war-crimes-as-israeli-attacks-wipe-out-entire-families-in-gaza/ (April 29, 2024).

Kelly, Meg, et al., 2023. “Israel Used U.S.-Supplied White Phosphorus in Lebanon Attack.” Washington Post. https://www.washingtonpost.com/investigations/2023/12/11/israel-us-white-phosphorus-lebanon/ (April 29, 2024).

Robinson, Kali. 2024. “What Is Hamas?” Council on Foreign Relations. https://www.cfr.org/backgrounder/what-hamas (April 29, 2024).

“The Nuremberg Trials | The National WWII Museum | New Orleans.” https://www.nationalww2museum.org/war/topics/nuremberg-trials (April 29, 2024).

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“Tokyo War Crimes Trial.” The National WWII Museum | New Orleans. https://www.nationalww2museum.org/war/topics/tokyo-war-crimes-trial (April 29, 2024).

Williams, Dan. 2021. “Israel to Tell ICC It Does Not Recognise Court’s Authority.” Reuters. https://www.reuters.com/article/idUSKBN2BV1YX/ (April 29, 2024).