In the meantime he will have to confine himself to travel to the US.

Arrest warrants were issued by the International Criminal Court (ICC) on November 21, 2024 against Israeli Prime Minister Benjamin Netanyahu and his former Defence Minister Yoav Gallant for war crimes and crimes against humanity.

In particular the court was satisfied there were reasonable grounds to believe they were responsible for using starvation as a weapon of war, and for murder and persecution and other inhuman acts and crimes in Gaza.

Arrest warrants were also sought against Palestinian leaders of Hamas in Gaza for the murder and abduction of Israeli civilians on October 7, 2023, but their prosecution is not possible because Israel exacted its own justice extrajudicially by assassinating them.

The ICC is the permanent successor tribunal to the Nuremberg Court set up by the allies in 1945 to punish Nazi leaders for war crimes and crimes against humanity. The ICC’s primary purpose is to punish leaders of state and non-state actors, whether democratic, autocratic, oligarchic or theocratic, for similar crimes as at Nuremberg with the addition of genocide that did not exist as a crime in 1945.

No question of moral equivalence arises between democratically elected Israeli leaders and Hamas terrorists. The issue for the court was whether there are reasonable grounds to believe the alleged perpetrators are guilty, and although terrorists are by definition more likely to commit crimes against humanity, democratically elected political leaders commit such offences too – often to a much greater extent.

The reaction to the arrest warrants in Israel has been to accuse the ICC of being anti-Semitic. Given the daily killing of innocent civilians in Gaza, this is grossly unfair and an insult to the memory of all the Jewish people lost to anti-Semitism in Europe down the generations culminating in the Holocaust.

The court is governed by the ICC treaty – known as the 1998 Rome Statute. It is a complete criminal code specifically designed to prosecute and punish political leaders and others responsible for the crimes of genocide, crimes against humanity, war crimes and the crime of aggression (serious international crimes).

Of the 193 states of the UN, 124 are parties to the ICC treaty. Israel is not a party and neither are the US, Russia, China and Turkey. Palestine became a party to the ICC in 2015, though Israel does not accept it is a fully fledged state capable of becoming a party to the ICC treaty in international law.

The ICC treaty makes everyone, including heads of state, political and military leaders and officials responsible for serious international crimes in the territories of states parties, or committed by nationals of states parties, liable to prosecution. Contrast that with the position in the US where the Supreme Court recently held that the US president is immune from prosecution for any crime done in his official capacity.

International crimes are grave crimes that offend the conscience of humanity so deeply they cannot be allowed to go unpunished. In some countries genocide, war crimes and crimes against humanity are international crimes in the sense that they can be prosecuted nationally wherever the crime occurred. 

But it was thought necessary to make international crimes punishable by the ICC as well, but only as a complementary system to national criminal jurisdiction, to make doubly sure no perpetrators, particularly political and military leaders, could escape justice owing to the unwillingness or inability of states parties to prosecute them – a real problem for many countries. 

The complementary nature of the ICC jurisdiction means that a case cannot be prosecuted by the ICC if it is being investigated by a national criminal jurisdiction or it has been investigated and there is no case to answer. To that end the ICC chief prosecutor is obliged early in an investigation to give notice of intention to investigate any person to the state whose criminal jurisdiction is engaged to give it a chance to prosecute that person if it is willing and able to do so.

Israel was first notified on April 8, 2021 of allegations of serious international crimes for its treatment of Palestinians in Gaza but did not take them seriously until the most recent investigation of Netanyahu and Gallant in respect of their conduct of the war in Gaza 2023-24. By this time it was too late for Israel to ask for time to investigate as that had to be done within a month of April 8, 2021.

Netanyahu said he will appeal the warrant for his arrest to the ICC appeal court on the ground that the territory of Gaza, where the alleged crimes occurred, is not part of the territory of a state capable of being a party to the ICC treaty in international law to give the ICC jurisdiction.

He may also appeal the admissibility of the case against him on the ground that the pre-trial court was wrong to rule that Israel’s attorney-general had been given proper notice and a fair opportunity to investigate the specific crimes alleged against him between October 8, 2023 and May 24, 2024. Although an argument based on lack of proper notice to Israel’s attorney-general is a hostage to fortune for Netanyahu, it is not without some merit as a ground of appeal.

The court has a chief prosecutor and judges, but it does not have a state police force at its disposal to arrest and bring offenders before it for trial. It relies on the criminal justice systems of the states parties to arrest alleged war criminals and bring them to trial at the seat of the court in The Hague in the Netherlands.

States parties have a duty to arrest persons against whom the ICC has issued arrest warrants and failure to do so is a serious breach of international law. In the case of Netanyahu most European countries said they would arrest him if he travels to their countries so he will have to confine himself to travel to the US.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge