On November 21, 2024, the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, accusing them of war crimes and crimes against humanity in Gaza. The warrants, requested by ICC Prosecutor Karim Khan in May 2024, were issued by the court's Pre-Trial Chamber I, which found "reasonable grounds" to believe that both officials were responsible for actions leading to starvation and deprivation of essential resources for Gaza's civilian population. Under the Rome Statute, the ICC's member countries are obligated to arrest individuals named in such warrants if they enter their territories.

To gain deeper insight into this decision by French Judge Nicolas Guillou, Romanian Judge Iulia Motoc, and Beninese Judge Reine Alapini-Gansou, I spoke with Dr. Heidi Matthews, a renowned legal scholar and Assistant Professor at Osgoode Hall Law School, York University.

SZR: Do you think the International Criminal Court's move represents a meaningful step towards accountability for war crimes, or is it merely a symbolic gesture unlikely to bring real consequences for Israeli leaders?

HM: These warrants are an incredibly meaningful step, both with respect to the Israel/Palestine conflict in general, and the legitimacy of the International Criminal Court. This is the first time western-allied leaders have been charged with international crimes.

The ICC has long been criticised for dealing exclusively with African conflicts or those who are enemies of the west, like Putin. The warrants signal that despite the Israel-led organised campaign of intimidation of Court officials and attempts to discredit the Court, the judges were still able to apply the law to the facts in an impartial way.

The cases against Netanyahu and Gallant are a major test for the ICC, and these warrants are just the beginning. Israel will still be able to challenge the jurisdiction and admissibility of the cases, and we should keep a close on eye on these proceedings moving forward.

SZR: Since neither Israel nor the United States are members of the ICC, how practical are these arrest warrants to enforce? What potential avenues might Israel and its allies have to challenge or undermine the court's jurisdiction?

HM: As we have seen with Omar Al-Bashir, former President of Sudan, leaders wanted by the ICC can evade arrest for many years — and perhaps indefinitely. The first ICC warrant for Al-Bashir was issued in 2009, yet he has managed to travel freely to ICC member countries like South Africa, Malawi, Uganda and Jordan.

Practically speaking, Netanyahu may find that some ICC members will be unwilling to enforce the warrant against him; Hungary’s Prime Minister, Viktor Orban, has already signaled that Hungary plans to defy its obligations under the Rome Statute by inviting Netanyahu for a diplomatic visit.

We can also expect Israel to continue to challenge the Court’s jurisdiction and the admissibility of these cases. Israel may also argue that Netanyahu enjoys head of state immunity. We can also expect the Trump administration, and also the Biden administration in its last days, to work with Israel to find new ways to undermine the work of the Court, perhaps even threatening to sanction states who cooperate with the work of the Court.

SZR: The ICC has no enforcement mechanism of its own and relies on member states to execute arrests. With over 120 member countries obligated to detain Netanyahu and Gallant if they enter their territory, what are the potential consequences if these states fail to comply with the warrants?

HM: The political consequences of an ICC member state refusing to arrest and surrender Netanyahu or Gallant would be different depending on the state involved. For example, the African Union has previously called for states to withdraw from the ICC on the basis that it was unfairly targeting African leaders. It’s possible, though I think unlikely, that we could see something similar from the G7 or other bodies representing western states.

Certainly, for states who played a particularly central role in the creation of the court and who carry a significant share of financial contributions to the Court — like Canada, the United Kingdom, France and Germany — failure to cooperate would signal a major policy departure and could jeopardise the future of the institution as a whole. Refusal to cooperate with the Court is also a stand-alone international wrong, for which ICC member states could be held accountable either in their diplomatic relations or, perhaps, at the International Court of Justice.

SZR: Israeli Prime Minister Benjamin Netanyahu called the warrants ‘absurd and anti-Semitic’, while President Isaac Herzog said they mark ‘a dark day for justice’ and called the court ‘a universal laughing stock’. Foreign Minister Gideon Sa'ar described the ICC as a ‘political tool’ for ‘the forces of evil’, and Minister of National Security Itamar Ben Gvir labeled it ‘anti-Semitic from start to finish’. What’s your response to these accusations? And if Israel continues to ignore the ICC and the warrants, what consequences could it face?

HM: Israeli leaders and their allies label most opposition to Israel’s crimes in Gaza as anti-Semitic. This accusation is, of course, meant to silence and smear supporting freedom and meaningful self-determination for the Palestinian people. It is not anti-Semitic is to criticise the actions of a state, particularly where that state stands credibly accused of committing atrocity crimes.

The consequences of Israel’s continued non-cooperation with and active obstruction of the ICC will be mostly political. It will be up to ICC member states to use these warrants to marginalise and isolate Israel in an effort to get its leaders to change course. The warrants can be used to do this in a variety of ways, including serving as evidence in domestic litigation around aid and military trade with Israel. Because actively supporting Israel’s ongoing criminality could amount to criminal responsibility for other leaders, states now have more reason than ever before to reevaluate their relationship with Israel, including the material and moral support they furnish the state’s current regime.

SZR: Pro-Israel advocates argue that the ICC is turning a blind eye to others accused of worse atrocities and that leaders from other nations involved in human rights abuses have not been brought before the ICC. What is your take on these claims of the ICC being selective in its application of justice?

HM: The work of the ICC — or indeed any court of law — is necessarily selective, in that focus on one case will mean that other cases will receive less attention or resources. The ICC’s mandate is to both punish “the most serious crimes of concern to the international community as a whole” and also to serve as a court of last resort in this respect. In other words, states bear the primary responsibility for addressing these crimes within their domestic jurisdictions.

In the case of Israel, there is no credible argument that Israel is pursuing criminal cases against Netanyahu, Gallant, or others for war crimes and crimes against humanity. In addition, there is ample evidence that the level of criminality on display in Gaza is extraordinary; for example, UNICEF has long warned that Gaza has become the most dangerous place in the world to be a child, and the IPC (Integrated Food Security Phase Classification) says that famine is now imminent, with 1.1 million Palestinians experiencing ‘catastrophic’ food insecurity. As the pre-trial chamber of the ICC found, there are reasonable grounds to believe that Israeli leaders have intentionally caused this food insecurity and deprived Palestinians of other necessities of life. The context of the alleged crimes — the 57-year-long brutal occupation of Palestinian land — makes the situation ever more urgent for international judicial attention.

Syed Zahoor Raza is a freelance contributor

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