Arrest warrant against Netanyahu: what it says about international criminal justice

The issuance of arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant “for war crimes and crimes against humanity” marks an undeniable turning point. This is in fact the first time that leaders of a Western democracy have had to answer for war crimes and crimes against humanity before the International Criminal Court. Entering into operation in 2002, this first permanent court, created four years earlier by the Treaty of Rome to judge these “crimes against humanity” as the great jurist Mireille Delmas-Marty defined them, is at a pivotal moment. Recognized by 125 states, it has a credibility that is far from acquired.

She must show that she is not only attacking second-rates from peripheral countries. A year after indicting Russian President Vladimir Putin for war crimes for the illegal deportation of Ukrainian children, prosecutor Karim Khan had to act after the October 7 massacres committed by Hamas and the operations carried out by the army Israeli in Gaza.

Through the controversies and divisions it arouses, this resounding announcement could nevertheless be another missed opportunity to universalize the fight against impunity. The embarrassment of many Western governments, starting with France, is palpable. The annual meeting of the ICC, which will be held from December 2 to 8, promises to be stormy to say the least. The States parties decide on the budget and notably elect the prosecutor. In this way, the ICC is also a political jurisdiction in many respects. It is only competent for crimes committed on the territories or by nationals of the States parties to the treaty.

Palestine joined the treaty in 2015, which gives the prosecutor powers to act for crimes committed on its territory, both in the West Bank and Gaza. Dictatorial regimes, starting with Russia and China but also the vast majority of Arab regimes, do not recognize its skills. This is also the case for democracies including the United States and Israel. A mechanism certainly provides that the prosecutor can be referred to the Security Council. But the Syrian regime, despite the 500,000 deaths in the civil war, has always been able to count on the Russian veto.

“We must collectively demonstrate that international humanitarian law which dictates the standards to be respected in times of war applies to all parties to a conflict,” prosecutor Karim Khan explained last May when requesting these charges from the three judges of the Pre-Trial Chamber. They, after six months, accepted them, considering in particular that there are “reasons to believe” that the two Israeli officials “intentionally and knowingly deprived the civilian population of Gaza of objects essential to their survival” .

An arrest warrant “for war crimes and crimes against humanity” was also issued against Mohammed Deif, the military leader of Hamas' military branch in Gaza for the October 7 attacks, although he was likely killed in an Israeli attack in July. Those targeting Yhahya Sinouar, the mastermind of the attacks, and Ismail Haniyeh, the political leader of Hamas, were removed after evidence of their deaths. Only the two Israeli leaders therefore remain accused. for the use of starvation as a method of combat, and co-perpetrators of crimes against humanity for murder, persecution and other inhumane acts”.

The ICC judges not States but individuals for their presumed responsibilities in the crimes committed. However, it is the State of Israel as a democracy which is directly called into question. By virtue of the principle of complementarity – one of the bases of the functioning of the ICC – national courts retain priority if they demonstrate their willingness and ability to try the suspects involved. But the judges ruled that no significant prosecutions had been initiated there against military officials or civilians in cases linked to the war in Gaza.

The authorities of the Jewish State respond that it is difficult, to say the least, to launch such investigations while the conflict is still ongoing. Israeli justice has shown in the past its ability to carry out investigations at the highest level condemning former President Moshe Katsav for sexual harassment or former Prime Minister Ehud Olmert for corruption. Israelis marched by hundreds of thousands in the spring of 2023 to defend the independence of the Supreme Court threatened by reform by the Netanyahu government.

Certainly no one among the ICC judges disputes Israel's right to defend itself, but they denounce the way in which the war is being waged. But the simultaneous announcement last spring by the prosecutor of the procedures – even if they are formally distinct – launched against the Israeli leaders and those of Hamas, outraged Israel and created real unease in many Western capitals because They seem to put on the same level a democratic state in self-defense and a terrorist group like Hamas.

Political blunder? A desire to please many countries of the South, which are numerous among the States Parties? It would have been simpler and more logical for the prosecutor to first launch indictments against Hamas for the October 7 attacks, especially since the Israeli authorities were ready to collaborate in the investigations. Furthermore, Mohammed Deif being most likely dead, there will be no, at least for the moment, any specific procedure on this pogrom, which left 1,200 dead, carried out with an obvious exterminating desire and marked numerous atrocities.

Israeli opinion is united. Even though a majority of Israelis have been denouncing for months the security fiasco of Netanyahu's government and its conduct of the war indifferent to the fate of the hundred hostages still in the hands of Hamas. The indignation is all the stronger as the Jewish state was already targeted by the International Court of Justice (ICJ), which decides disputes between states.

Seized by a complaint from South Africa, she called on Israel to prevent any risk of genocide in Gaza while postponing the judgment on the merits – that is to say the reality of a possible genocide – until later . But the embarrassment is also very real in many Western capitals. All states parties to the ICC must theoretically arrest the accused if they enter their territory. France remains in an embarrassed limbo. Last June, President Emmanuel Macron declared on France 2 that in the event of an arrest warrant, he would continue “to call, to see, to work with Prime Minister Netanyahu for as long as he is Prime Minister of Israel, because it is essential “. Berlin is equally embarrassed. Hungarian populist Prime Minister Viktor Orban invited his Israeli counterpart. As for the United States, they do not recognize the ICC and therefore will continue to speak to and receive Netanyahu.

The paths of diplomacy and those of justice do not always go hand in hand even if the desired goal, peace, is the same. These contradictions are evident even at the highest levels of the UN. Its Secretary General Antonio Guterres did not hesitate a month ago to go to Kazan in Russia at the Brics summit, enthroned alongside Vladimir Putin who was nevertheless indicted by a Court dependent on the UN. The credibility of the CPI is therefore struggling.

The arrest warrant issued in 2009 against the former Sudanese dictator Omar el-Bechir, accused in particular of genocide in Darfur, remained a dead letter even after the latter was ousted from power. No one seriously imagines seeing Vladimir Putin one day in the dock in The Hague like former Serbian President Slobodan Milosevic in the early 2000s. It will be the same for Netanyahu even if this arrest warrant will complicate his travels.

Certainly the ICC does not have its own police force and its powers are in fact much more constrained than those of the two so-called international criminal courts. for thisthat on the former Yugoslavia and that on Rwanda, in their specific field. But the operational shortcomings are glaring. However, so far, it has essentially only judged around ten militia leaders or African officials, the most important of whom, such as former President Laurent Gbagbo, were ultimately acquitted. The ICC's record, after twenty-two years of activity, is therefore very meager and these spectacular indictments which cannot be followed up only further underline its impotence. Symbolism is necessary but not sufficient.