The International Criminal Court (ICC)’s decision to issue an arrest warrant against Israeli Prime Minister Benjamin Netanyahu has provoked a backlash. Many global north states that traditionally ally with Israel are questioning the court’s decision, and some are outright attacking it. It was a different story when the ICC issued an arrest warrant for Vladimir Putin last year. This is the latest example of many states’ hypocrisy when it comes to Israel, indicative of a selective approach to international law. For the sake of humanity, the court must be free to do its job of challenging the impunity of powerful human rights abusers.

A major step forward has been taken to hold the Israeli government to account for its evident human rights crimes in Gaza. On 21 November, the International Criminal Court (ICC) issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu, former defence minister Yoav Gallant and Hamas’s military leader Mohamed Deif. But some powerful states are rejecting the decision, calling into question their support for international law.

Too many states are picking and choosing when to respect the court’s decisions according to what suits their interests. Blatant double standards have been on display throughout Israel’s current onslaught on Gaza.

Tacking on impunity

The ICC has issued the warrants because it considers there are reasonable grounds to believe Gallant and Netanyahu are responsible for ‘the war crime of starvation as a method of warfare’ and ‘the crimes against humanity of murder, persecution, and other inhumane acts’. It also finds reasonable grounds to believe Deif, who Israel claims to have killed, is responsible for crimes against humanity and war crimes in relation to the 7 October 2023 attacks.

In issuing the warrants, the ICC is fulfilling its unique international role of prosecuting people deemed responsible for genocide, crimes against humanity, war crimes and the crime of aggression. The ICC was established under the Rome Statute in 2002, following extensive civil society advocacy, to address an impunity challenge: the worst crimes are often the least likely to be punished because they’re committed or commissioned by powerful figures who use their power to evade justice.

The court was founded in the wake of the Rwandan genocide and after some success in using international tribunals to try war crimes in former Yugoslavia. It marked a recognition that new international justice structures were needed. The ICC is a global court of last resort, able to prosecute people who’ve escaped national and regional justice processes.

As it stands, 124 states have accepted the court’s jurisdiction by ratifying the Rome Statue. This indicates a remarkable degree of acceptance that there should be limits to national sovereignty in the interests of ending impunity, since national leaders have no immunity from prosecution. But there are major holdouts, including three of the five permanent members of the United Nations (UN) Security Council – China, Russia and the USA – as well as Israel.

The ICC can investigate crimes even if a country isn’t a member. The UN Security Council can refer a situation to it, although the veto power of the five permanent members means this rarely happens. The ICC’s prosecutor, its lead official, can also launch investigations on their own initiative, as he did with Ukraine in March 2022, after 39 ICC member states referred the situation to the court. But in practice, it’s hard to collect the necessary evidence or apprehend suspects when states refuse to cooperate.

Israel offers acid test

The ICC’s then prosecutor, Fatou Bensouda, launched a preliminary investigation into the situation in Palestine in 2019. This was possible because Palestine joined the ICC in 2015, following a 2012 UN General Assembly resolution recognising it as a non-member observer state. The investigation covers crimes committed on Palestinian territory and by Palestinians on Israeli territory. When the current phase of the conflict began with the 7 October 2023 attacks, it became part of the ongoing investigation. Current ICC prosecutor Karim Khan, who is under investigation for sexual misconduct allegations, requested the warrants in May.

Israel has never accepted the investigation, arguing that Palestine is not a sovereign state and therefore the ICC has no jurisdiction. It also uses dirty tricks. In 2021, it claimed that six Palestinian human rights groups that were actively engaging with the ICC’s investigation were terrorist groups. In 2024, it was reported that Israeli security services had unleashed a nine-year campaign to undermine ICC staff, including through hacking, surveillance, smears and threats. The head of Mossad, one of Israel’s main intelligence agencies, reportedly secretly met with Bensouda to try to persuade her to drop the investigation, and Israel allegedly searched for compromising information on her.

Recently, ICC President Tomoko Akane said that ‘coercive measures, threats, pressure and acts of sabotage’ from powerful states threatened the ICC’s existence. Bensouda reported experiencing threats and intimidation during her time as prosecutor. Under the first Trump administration, the USA, Israel’s staunchest ally, imposed sanctions on Bensouda and others in retaliation for the court’s scrutiny of Israel and also of US actions in Afghanistan. The Biden administration dropped them; the second Trump administration is likely to reinstate them. It’s perhaps telling that Bensouda only launched a full investigation shortly before her term ended.

Netanyahu greeted the decision to issue arrest warrants, as he does any criticism, by smearing it as antisemitic. He called Khan ‘one of the great antisemites in modern times’ and compared him to a Nazi-era judge. Israel has also said it will appeal against the decision. The US government was quick to say it ‘fundamentally’ rejected the decision, while Trump’s pick for National Security Advisor, Mike Waltz, accused the ICC and the UN of ‘antisemitic bias’, promising a ‘strong response’.

This was to be expected. But around the world, the warrant against Netanyahu is proving an acid test of the extent to which states are prepared to respect international law. Netanyahu is by no means the first national leader to be the subject of an ICC arrest warrant. The court issued one in March 2023 against Vladimir Putin and an associate for the war crime of forcibly transferring children from Ukraine, while Sudan’s long-time and ultimately ousted dictator, Omar al-Bashir, was subject to an arrest warrant for genocide, war crimes and crimes against humanity. What’s new is that this is the first time the ICC has issued a warrant against the leader of a state with many global north allies.

Much of the debate focuses on whether states would be willing to comply with the warrant if Netanyahu were to visit their territory. The Rome Statute clearly obliges all states that have ratified it to do so. Encouragingly, the European Union’s foreign policy head, Josep Borrell, has said all the bloc’s states are bound by the warrants. Some, including Belgium, Ireland, the Netherlands and Spain, have confirmed they would enforce the warrants.

But others have given a weaker response. Italy recognised its duty to enforce the warrant but said it didn’t necessarily agree with the court’s decision. Austria similarly said it was obliged to respect ICC arrest warrants but called the decision ‘incomprehensible and ludicrous’. States including Estonia and Sweden have fudged the question of whether they’d arrest Netanyahu and Germany has said as little as possible.

The French government has tied itself in knots. First it said it would meet its obligations under the Rome Statute but then tried to claim Netanyahu has immunity because Israel isn’t an ICC member. But the ICC has made clear that national leaders don’t have immunity, regardless of whether their states have joined the court. That’s why, when Putin paid an official visit to ICC member Mongolia in September, the court criticised Mongolia for not enforcing the warrant.

Hungary’s authoritarian leader Viktor Orbán has gone even further. Orbán sees himself as the leader of an increasingly influential international network of right-wing populist and nationalist politicians, pushing back against global laws and norms. He didn’t just reject the court’s warrant: he also invited Netanyahu to visit Hungary, making clear he’d be safe from arrest.

Double standards

It’s all very different from when the ICC issued its arrest warrant against Putin. Then, most global north states lined up to demand justice. France welcomed the decision, saying no one should escape justice regardless of status. It didn’t matter then that the accused was from a non-ICC state.

Another blood-soaked leader is now in the ICC’s sights: Min Aung Hlaing, head of Myanmar’s murderous junta. No criticism has come from global north states in response to Khan’s request for an arrest warrant for crimes against humanity against the Rohingya people.

Too many states are picking and choosing when to respect the court’s decisions according to what suits their interests. Blatant double standards have been on display throughout Israel’s current onslaught on Gaza.

Many global north states that led the rightful international condemnation of Russia’s numerous human rights violations in Ukraine have pulled their punches with Israel. This has been seen in the USA’s repeated use of its veto to block Security Council action, the failure of states including Germany, Italy and the UK to back UN General Assembly resolutions on Gaza and the suspension by many states of their contributions to the vital work of UNRWA, the UN’s agency for Palestinians, in response to Israeli smears.

With an estimated Gaza death toll of 44,532, it’s clear the current international system isn’t doing its job. Global governance institutions are skewed towards the interests of powerful states, particularly from the global north, and most heavily towards the states that wrote their privilege into the institutions established after the Second World War. Now the ICC has signalled that being a global north ally doesn’t necessarily insulate a national leader from international justice, it’s brought backlash.

Support needed

The ICC has been accused of bias before. In the past it faced accusations of anti-African bias, as many of its early investigations concerned conflicts on the African continent. Burundi withdrew from the court in 2017, following the opening of an investigation into crimes against humanity. But while other African states threatened to pull out, there was no domino effect.

The only other state to pull out was the Philippines, in 2019, when the then president’s lethal anti-drugs campaign came under investigation. In neither case did this mean the end of the investigation – but in neither case it was there any progress, because one of the court’s main weaknesses is that it can’t do much without the cooperation of states.

The lack of support from some states, including the most powerful, has forced the ICC to adopt a patchwork approach to justice and weigh its choices carefully, which inevitably involves a degree of calculation. Its early decision to focus on African cases where likely because African states had joined the court in numbers, while states elsewhere were less enthusiastic.

While the court lacks universal reach, the crimes it adjudicates are universal crimes. Many of the foundations of international law were created after the Second World War with the aim of ensuring that the barbarity of that time would never be allowed again. International human rights and humanitarian law makes clear that everyone, wherever they live, is the subject of rights.

The current array of international institutions unquestionably needs reform, but there will always be a need for global bodies to do things states can’t or won’t do, and to tackle problems that cross borders. In an inadequate system, the ICC offers an imperfect but still vital corrective to state failings. Every time the ICC holds an investigation, tries a suspect, finds them guilty and sentences them, it strikes a blow for human rights and our shared humanity. Attacks on the court do the opposite.

If states can’t accept the ICC’s decisions on Israel, they’re making clear that don’t really believe in a rules-based international order; they only pay lip service to the notion when it suits them. If states say that even the current imperfect rules don’t always apply, they lose their authority to call for human rights accountability in Ukraine, Myanmar and all the other places where the rules are being broken. It’s time to be better. All states must allow the ICC to do its vital work.

OUR CALLS FOR ACTION

  • All states should commit to cooperating with the ICC’s investigation into the situation in Palestine and enforcing all arrest warrants issued as a result of the investigation.
  • Non-ICC member states should ratify the Rome Statute.
  • Civil society, particularly in the global south, should push for universal ratification and the strengthening of the ICC.

For interviews or more information, please contact research@civicus.org

Cover photo by Jonathan Raa/NurPhoto via Getty Images