What does Netanyahu’s arrest warrant mean for international law?

There was one evocative moment among many in the interview ICC prosecutor Karim Khan gave to CNN’s Christiane Amanpour, on the day he announced he would be requesting arrest warrants be issued for three top Hamas leaders and two members of the Israeli cabinet: PM Netanyahu and defence minister Gallant.

When Amanpour asked him about how he deals with related political pressure, citing US and Israeli officials’ diatribes against his (then-prospective) decision, Khan recalled a conversation with an “elected state official”: “I’ve had some elected leaders speak to me and be very blunt. ‘This Court is built for Africa and for thugs like Putin,’ was what one senior leader told me.”

“We don’t view it like that,” Khan responded to his interlocutor. “This court is the legacy of Nuremberg. This court is a sad indictment of humanity. This court should be the triumph of law over power and brute force…”

The comment by this unidentified state official is offensive and wrong on many levels. It betrays a misunderstanding of what the ICC should be and why it exists: ensuring that the most powerful people in the world can be held to account, and do not benefit from impunity for the gravest crimes. The comment is also, unfortunately, unsurprising: not only is it a common view, but also one which is confirmed by experience.

Double standards, selectivity, and victors’ justice are the “original sin” of international criminal law. These formidable critiques have plagued international criminal justice institutions forever, starting from the post-WWII international military tribunals in Nuremberg and Tokyo. Later courts, such as the UN ad hoc tribunal for Rwanda, have not been spared from the same malaise, and the ICC itself faced the critique of “African bias” in an earlier stage of its work because situations from the continent were heavily overrepresented on its docket.

More than two decades into its work, the ICC is engaged in 17 situations across multiple regions of the world, including Africa, Eastern Europe, Central and Southeast Asia, the Middle East, and South America. The span of its operations may attest that this modern iteration of the court does not target Africa and the US’s enemies alone.

The Palestine investigation presents a serious existential test for the ICC, and the moment of truth towards which it has been building since its establishment. The battle for the soul of international criminal law is on. Hardly anything can be more consequential than the prosecutor’s decision to go after the two members of the government of Israel – a close ally of the United States, which pledged to protect its own as well as Israeli officials against the prosecution in the Hague, and imposed sanctions against the ICC back in the Trump era.

Much has changed and nothing has changed in three years. Twelve US senators wrote the following in their 24 April letter to the ICC Prosecutor: “Target Israel and we will target you … we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.” In the aftermath of the 20 May announcement by the prosecutor, the Biden administration characterised this development as “outrageous” and “totally wrongheaded”. The state department is now working with the congressmen on developing a response, which may include reimposing the sanctions on the ICC which it lifted as inappropriate and ineffective back in 2021.

The ball is now with the pretrial chamber judges, who will decide whether or not to grant the prosecutor’s applications. But by seeking, for the first time in the lifespan of the court, the arrest of Western-backed high-ranking officials, the prosecutor has crossed the Rubicon.

The 2023 warrant for Vladimir Putin – who is no Western ally to put it mildly – is no real precedent. Like in relation to Ukraine, in Palestine the prosecutor moved in the face of the real prospects of retaliation and overt threats against him and his colleagues. “We are not going to be dissuaded by threats or any other activities because in the end we have to fulfil our responsibilities as prosecutors, as men and women of the office, as judges, as the registry to something bigger than ourselves, which is the fidelity to justice,” Khan said in the CNN interview. “And we are not going to be swayed by … threats, some of which may be public and some not.”

Regardless of whether the Palestine warrants will be issued and how the cases against Hamas and Israeli leaders will unfold at the ICC, the applications are defining for the legitimacy of the ICC and for the future of international criminal justice. The integrity of the system is on the line as never before.

The prosecutor and his office deserve full support moving forward in exercising their mandate without fear or favour. Such support should necessarily include the ICC states parties putting effective political and legal measures in place to protect the court against threats, intimidation, and retaliation measures.

Insofar as these may amount to offences against the administration of justice under the ICC statute, they must be investigated and prosecuted. It is time for the ICC states to show that their commitment to the court is genuine and that it was built not only “for Africa and thugs like Putin” but for everyone – and that includes state leaders like Netanyahu.