The Double-Sided Drawback to the ICC Warrants

The International Criminal Court’s arrest warrants for Prime Minister Binyamin Netanyahu and former Defense Minister Yoav Gallant were not surprising, but they were shocking nonetheless. The fact of Israeli leaders being indicted for war crimes is jarring, and while few Israelis support the ICC’s action, many took it as a sad commentary, either on how reckless Netanyahu and his government have behaved or how isolated and misunderstood Israel has become since the October 7 attacks. Despite even the ICC’s most ardent defenders knowing that the likelihood of Netanyahu and Gallant being arrested is virtually zero, many view the issuance of these warrants as an important symbolic victory for international law and human rights. In reality, the opposite is true: the warrants are only going to further erode the standing of the ICC and its principles, and will have the added-on effect of making sustainable solutions in Gaza harder to achieve.

“Many view the issuance of these warrants as an important symbolic victory for international law and human rights. In reality, the opposite is true: the warrants are only going to further erode the standing of the ICC and its principles, and will have the added-on effect of making sustainable solutions in Gaza harder to achieve.”

To put my cards on the table, I don’t believe in the ICC as an institution. The international system is organized into national entities, and having any supranational body claiming universal jurisdiction over states makes little sense to me on a theoretical level. On a practical level, having a supranational judicial body with no mechanism to enforce its rulings is an exercise in self-important futility, and applying those rulings to states that have not voluntarily submitted themselves to the court’s jurisdiction—as in Israel’s case—violates a host of legal principles in my view. In the particular case at hand, the ICC’s jurisdiction over Israel is questionable even under its own standard since it requires treating the Palestinian Authority as a state and as determining that it is sovereign in Gaza. But leave all that aside; taking the ICC’s general authority and its jurisdiction over Israel at face value still does not make this a win for the ICC in any way.

The ICC’s decision garnered a mixed reaction globally, with some countries pledging to enforce the ruling, others issuing ambiguous statements or keeping silent, and others vowing to ignore the ruling or, in the case of the incoming Trump administration, promising to target the ICC in response. The upshot is that the ICC warrants not only are unlikely to result in Netanyahu and Gallant appearing in the dock at The Hague—even if their menu of future travel destinations has now been severely curtailed—but also have prompted direct condemnation from a number of states.

There are two downsides to this for the ICC itself. The first is that the ICC, a court that claims a nearly universal mandate but that relies on the good graces of member states to comply with its directives, will appear increasingly impotent as its arguably most high-profile arrest warrants go ignored. If the aim was to demonstrate the ICC’s power or ability to affect change, the warrants will do the opposite. The second is that the concept of international law will take a hit, both because its unenforceability will become clearer to more people and because the ICC’s actions strike many—including me—as overreach and as suspiciously selective. I try to never engage in whataboutism and consistently defend people’s right to care about the things they choose to care about without having to justify it—in other words, nobody should have to first demonstrate against Bashar al-Assad’s massacres in Syria before demonstrating against Israeli home demolitions in the West Bank. But the ICC’s extreme move of issuing an arrest warrant for a democratically elected sitting prime minister prosecuting a war of self-defense while ignoring decades of outrages in other places is eyebrow-raising, to put it mildly. It’s hard to look at the ICC’s decisions as applying international law neutrally or comprehensively.

“The ICC’s extreme move of issuing an arrest warrant for a democratically elected sitting prime minister prosecuting a war of self-defense while ignoring decades of outrages in other places is eyebrow-raising, to put it mildly. It’s hard to look at the ICC’s decisions as applying international law neutrally or comprehensively.”

If this were merely a question of the credibility of the ICC or the credibility of international law, that in itself would have been reason for the ICC to think twice before its decision. But there is a more tangible downside to what the ICC did, which is that it renders it more difficult to actually improve the situation in Gaza. Unlike the war in Lebanon, the war in Gaza is still far from concluding with a ceasefire and then a more permanent agreement, both of which are necessary to meaningfully improve the humanitarian situation for Palestinians and to create a new governing structure in the territory. But when the war ends, the next steps will require implementation and backing from a host of international actors, and the ICC just made that far more difficult for Israelis to accept.

Israelis have long been distrustful of the international community. They view the United Nations and its disproportionate focus on Israel as implacably hostile, are wary of the European Union, and have largely embraced Jabotinsky’s iron wall metaphor when it comes to international institutions and to many individual states. The ICC arrest warrants are only the latest layer of an already moldy and rotting cake. This comes at a time when Israel has to extract itself from two fronts but cannot do it by itself. For instance, the ceasefire agreement in Lebanon relies on a multilateral monitoring committee, the U.S., France, and UNIFIL, among other players. Israel was already hung up on UNIFIL due to decades of it turning a blind eye to Hezbollah’s build-up in southern Lebanon in violation of UNSC 1701, but then objected to France’s role in any ceasefire enforcement because of its declared willingness to comply with the ICC arrest warrants. The warrants do not only taint the ICC or the U.N. for Israelis, but also taint individual states, and these are all entities with which Israel needs to work going forward. The ICC decision could not have come at a more inopportune time given the need for more, rather than less, trust between Israel and the international community.

“The warrants do not only taint the ICC or the U.N. for Israelis, but also taint individual states, and these are all entities with which Israel needs to work going forward. The ICC decision could not have come at a more inopportune time given the need for more, rather than less, trust between Israel and the international community.”

Gaza is infinitely more complicated than Lebanon. After a ceasefire—itself no easy feat and currently nowhere on the horizon—Israel will need someone to build a security force, someone to figure out how to immediately surge in humanitarian assistance in a secure and sustainable way, someone to monitor Hamas’ adherence to agreed-upon terms, someone to take the lead in reconstructing Gaza, someone to create a provisional governing structure. In an ideal situation, this will all be done under a U.N. mandate stemming from a Security Council resolution in order to get the most buy-in. Much of this would be staggering to contemplate in a perfect environment, and now seems insurmountable when factoring in that there will be states involved who have pledged to arrest Israel’s prime minister and with Israelis of all stripes even less conditioned to trust actors beyond their borders. Getting Israel on board with a variety of solutions to end the fighting and sustain the peace is harder today than it was before the ICC acted. The conclusion for many Israelis is that they cannot trust anyone to treat them fairly or in a measured way, and that if it means hunkering down for years or even decades until they can solve the problem on their own, so be it.

Proponents of the ICC may think that it has made an important symbolic statement on behalf of international law and on behalf of Palestinians suffering under horrific conditions in Gaza. The actual result on both counts will be the reverse. Instead of making things better, the ICC has made things worse.