Aga Syed Muntazir Mehdi*
Last week, the International Criminal Court issued an arrest warrant for the Israeli Prime Minister, as well as his former defence minister Yoav Gallant, for war crimes and crimes against humanity in Gaza.
ICC Chief Prosecutor Karim Khan requested the warrant in May. He alleges that Benjamin Netanyahu and Yoav Gallant fully directed attacks against civilians in Gaza and caused great suffering and injury to them, including through the use of starvation as a method of war.
The ICC had little choice but to issue the warrant, given that it had “reasonable grounds to believe” that Netanyahu and Gallant committed war crimes and crimes against humanity within the court’s jurisdiction.
ICC’s Chief prosecutor provided evidence that they, through a common plan, “systematically deprived the civilian population of Gaza of objects indispensable to human survival.” They imposed a “total siege” by closing border crossing points for long periods and, when the points were reopened, by restricting the entry of medicine and food.
Israel cannot question the ICC’s rules. They are based on the 1949 Geneva Conventions, which Israel has ratified, as well as customary international law applicable in all countries. The ICC is able to prosecute Israeli leaders because Palestine ratified the court’s statute in 2015.
Netanyahu has long feared the ICC and its ability to issue warrants. In May, certain media organizations reported that from 2017 to 2021, the director of Mossad, the Israeli intelligence agency, allegedly sought to pressurise the ICC’s then-chief prosecutor Fatou Bensouda into halting a war crimes investigation in Palestine.
After the warrants were issued, the office of Netanyahu rejected the ICC’s claims, calling them “absurd and false accusations” and insisting that Israel would continue to pursue its war goals. When Khan first requested the warrants, Netanyahu called him one of the “great antisemites in modern times.”
Khan anticipated criticism in the request itself, writing that “No foot soldier, no commander, no civilian leader no one can act with impunity.” If the ICC were to be seen as applying the law selectively, “we will be creating conditions for its collapse.”
Netanyahu’s position as Prime Minister is protecting him from being convicted and sentenced in an Israeli court on charges of corruption. Now, an ICC arrest warrant gives him another reason to hold on to power.
While national leaders do not have immunity from the International Criminal Court, Netanyahu, as long as he remains Prime Minister, will be protected by the physical capabilities of the Israeli state, including the Israel Defence Forces. Netanyahu will also take comfort in the fact that Donald Trump returning to power in the US, with a crew of staunchly pro-Israel backers poised to steer his Middle East policy.
But leaders, governments and national societies all change over time, and one day in the future Israelis might decide to send Netanyahu to The Hague.
If this sounds implausible, it’s exactly what happened to Milošević. He was surrendered to the International Criminal Tribunal for the former Yugoslavia by the Serbian government just one year after he lost power in Belgrade.
Netanyahu will more likely not risk a trip abroad, as Augusto Pinochet did in 1998. If he enters the territory of any of the 124 parties to the ICC statute, including Canada, that country would be obligated to arrest and transfer him to the court.
Netanyahu can bluster and threaten as much as he likes. The spectre of a war crimes trial will now hang over him for the rest of his life.
*The author is a constitutional lawyer and IR commentator. He can be reached at: agamuntazir@gmail.com, Twitter handle @agasyedmuntazir
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