by Mick the Ram

US President Joe Biden has called an International Criminal Court (ICC) war crimes arrest warrant for the Israeli prime minister Benjamin Netanyahu “outrageous”.

The ICC also issued an arrest warrant for defence minister Yoav Gallant (even though he has been removed from the role) and a Hamas commander, Mohammed Deif, who Israel actually are confident was killed in the fighting in Gaza back in July.

Judges are adamant that there are “reasonable grounds” to believe the three men bore “criminal responsibility” for crimes during the war between Israel and Hamas.

Europe and the US were split in their response to the warrant, with several European countries saying they respect ICC decisions and the British government refusing to get into hypotheticals.

Mr Biden was forthright in his summing up of the warrants against the Israelis, saying: “whatever the ICC might imply, there is no equivalence – none – between Israel and Hamas and we will always stand with Israel against threats to its security.”

Both Israel and Hamas reject the allegations made by the ICC, with Netanyahu remarking that Israel would “not recognise the validity” of the ICC’s decision.

Criminal Court justify its decision

For the case against Dief an ICC pre-trial chamber found reasonable grounds to believe he was “responsible for the crimes against humanity of murder, extermination, torture, rape and other form of sexual violence; as well hostage taking and outrages upon personal dignity.”

With regards to Netanyahu and Gallant the chamber found reasonable grounds to believe that they “each bear criminal responsibility for crimes as co-perpetrators for committing the acts jointly with others of war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution and other inhumane acts.”

Netanyahu calls it “dark day”

However, despite the warrants neither men face any immediate threat of prosecution, although it could make it difficult for them to travel abroad.

Netanyahu said in a video that it was a “dark day in the history of humanity” and that the ICC has become “the enemy of humanity.”

He continued to say: “It’s an antisemitic step by the Hague that has one goal, which is to deter me, to deter us from having our natural right to defend ourselves against enemies who try to destroy us.”

Accusations called into question

He highlighted that the court were accusing Israel of a deliberate policy of starvation, yet they have supplied Gaza with 700,000 tons of food to feed the people of Gaza.

He also made the point that they issue millions of text messages, phone calls, leaflets to the citizens of Gaza to get them out of harm’s way – while the Hamas terrorists do everything in their power to keep them in harm’s way, including shooting them, using them as human shields.

Gallant said the court’s decision “places the State of Israel and the murderous leaders of Hamas in the same row and thus legitimises the murder of babies, the rape of women and the abduction of the elderly from their beds.”

In the hands of member states

The impact of the warrants will very much depend on whether the court’s 124 member states decide to enforce them or not.

In the UK’s case they were non-committal, but did say they would always “fulfil the obligations under the act and indeed our own legal obligations”.

Conflicting opinions

Others throughout Europe have issued varying responses. The Dutch foreign minister said “we will act on the arrest warrants” and Italy said it would support the Court too, adding it should “play a legal role and not a political role”.

Taking a similar but slightly more supportive stance were the Germans, who said Berlin had “unique relations with a great responsibility for Israel” and further action would only be taken when a stay by either of the men was “foreseeable”.

Fully supportive of Israel however were Hungary and the Czech Republic, both indicating that were either men to visit the ruling by the ICC would have no effect.

Double standards

South Africa on the other hand welcomed the decision, and urged “all state parties to act in accordance with their obligations in the Rome Statute”.

That stance does, it should be acknowledged, contradict their failings back in 2015 when they turned a blind eye to an ICC arrest warrant against the Sudanese leader Omar al-Bashir.

Formed with good intentions

The ICC is a global court with the power to bring prosecutions for genocide, crimes against humanity and war crimes.  

The court, in the Dutch city of The Hague, was established in 2002 to hold rogue leaders responsible for atrocities to account. It came about largely as a result of the Yugoslav wars and the Rwandan Genocide.

Last resort

The ICC has no police force of its own to track down and arrest suspects, instead it must rely on national police services to make arrests and seek their transfer to The Hague.

It is essentially a court of last resort action, intervening only when national authorities cannot, or will not, prosecute.

Important missing members

Only crimes carried out after 1 July 2002 can be subject to prosecution. That is the date the “Rome Statute” came into force and was ratified by 124 countries and since then a further 34 have signed up to it and may ratify it in the future.

Crucially, Israel is not a member and just as importantly, neither is the US and there can be little doubt that the court’s operation is weakened without their involvement.

Their absence also means that funding becomes very expensive for certain other countries, in particular the UK, Japan, Germany and France who are among the largest contributors.