Possible ICC arrest warrant against Netanyahu: US hypocrisy, explained

Posted on May 19, 2024 by martyrashrakat

May 18, 2024

An illustration showing Israeli Prime Minister Benjamin Netanyahu and the American flag as well as the logo of the International Criminal Court (ICC). (Illustrated by *Hady Dbouq*)

This is how ICC arrest warrants work, their importance, why Netanyahu might not get away with murder this time, and how the US has continued to be a hypocrite.

Here’s an idea for a potential bedtime story: There once was a very very bad man leading an over 200-day genocide against the people of Palestine in Gaza, they called him Israeli Prime Minister Benjamin Netanyahu also known as “Bibi”. In conformity with a belief popular among Israeli settlers who stole Palestinian land over 75 years ago supported by some bad bad imperialist countries, Bibi thought he was above the law.

You cannot entirely blame him as the world helped enable this belief by constantly overlooking the fact that Palestine is occupied, its people are being forced out of their homes, murdered, raped, tortured, detained and the list of horrible crimes goes on. Until one day Bibi sensed that there might be a chance he was not actually above the law as word spread about the International Criminal Court (ICC) potentially slapping him, alongside other bad men, with arrest warrants.

Bibi then rushed to his beloved mother, let’s call her the United States. He cried for help in a video online asking “free leaders of the world to stand against the ICC outrageous assault” and his mother threatened to retaliate against the court.

So far, this story does not have an end as it will determined by what happens next, and how everything plays out and unfolds.

On a serious note, however, here is a deeper legal and political dive into the importance of such arrest warrants and why it might be hard for Netanyahu to get away with murder this time with a sprinkle of US hypocrisy.

How legal proceedings at the Court work

The ICC in the Hague has jurisdiction over four types of crimes:

Genocide
Crimes against humanity,
War crimes
Crime of aggression

The legal process in the court includes six stages:

Preliminary examinations
Investigations
The pre-trial stage
The trial stage
The appeals stage
The enforcement of the sentence.

On 17 November 2023, the Chief Prosecutor of the Court, Karim Khan, issued a statement announcing that based on a referral five Court States Parties: South Africa, Bangladesh, Bolivia (Plurinational State of), Comoros, and Djibouti, his office confirms that it is investigating the situation in the State of Palestine.

Khan said that this investigation began on March 3, 2021, and includes actions committed in Gaza, the West Bank, and the eastern part of al-Quds since June 13, 2014, that can amount to crimes listed in the Rome Statute. The Chief Prosecutor said that this investigation is ongoing and “extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023.”

Why the arrest warrants are vital

In the investigation stage of the legal process, the Prosecution can request the ICC judges from the pre-trial chamber, after piling up evidence and identifying a suspect, to issue an arrest warrant against the latter to summon for appearance that is if the suspect is willing to cooperate with the court and appear voluntarily.

Article 63 of the Rome Statute says that the accused, labeled as a suspect at the pre-trial stage, should be present during the trial. This means that the judicial process cannot begin without the presence of the accused and in turn, without the arrest of the suspect, their summon, or voluntary presence.

So, for the Court to actually be able to move to the hearings stage following the investigation stage, it is legally required to arrest Benjamin Netanyahu and other individuals it has deemed as suspects in the case. Knowing that “Israel” lied at the International Court of Justice before in front of the whole world and that it still to this day denies all crimes it has committed in Gaza, one would expect it not to be cooperative with the Court, especially amid recent statements attempting to discredit the Court and throw in “the right of self-defense” again.

Netanyahu will most probably not voluntarily appear at the Court, so who would assist in executing his arrest especially since “Israel” is not part of the parties of the Court?

Primarily, the power to execute the arrest warrants is vested in the States which are part of the Court. According to Article 59 of the Statute any State Party that has gotten a request for provisional arrest or for arrest and surrender “shall immediately take steps to arrest the person in question in accordance
with its laws and the provisions of Part 9.”

According to Article 86 of the Rome Statute, “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

Not only that but according to Article 88 of the Statute, “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under” Part 9 of the Statute which addresses international cooperation and judicial assistant. Article 89 also addresses how States should comply with requests for arrest and surrender by the Court.

All of these provisions mean that even if Netanyahu does not cooperate with the Court any State that is a member of the Court should cooperate with the latter and aid in executing the arrest warrant which would limit Netanyahu’s movements and put further pressure on him especially since arrest warrants remain in effect until otherwise ordered by the Court.

The responsibility does not fall on State Parties only as the Court can also ask non-state Parties for assistance in the arrest of the suspect especially if the trigger behind the Court’s jurisdiction is the United Nations Security Council as all relevant UN Member States are bonded by the duty to cooperate even if they are not a State Party to the Rome Statute.

Ne bis in idem

Article 20 of the Rome Statute addresses the Ne bis in idem also known as the principle of complementarity which means that the ICC can practice its jurisdiction when the national courts have failed or are unwilling to investigate the crimes within the jurisdiction of the court.

First things first, the fact that the Court is in the investigations phase means that it probably already decided that there are not any genuine national proceedings. Why? Well, according to the Court itself during the preliminary examinations phase, the Office of the Prosecutor must decide whether there is “sufficient evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims.”

So this implies that the Court decided on all of the above including that there are not “genuine national proceedings.”

On the other hand, how reliable are the Courts of the occupation in this sense? And no, this is not coming from the fact that it is quite literally an occupation, but from actual live examples of how Netanyahu has attempted to overhaul the occupation’s “legal system” or how he was even exempted from accountability.

In three cases filed in 2019, Netanyahu has been charged with fraud, bribery, and breach of trust also known as cases 1,000, 2,000, and 4,000.

In March 2023, the Knesset approved a law that gave Benjamin Netanyahu immunity from prosecution on criminal charges. This law prevents a sitting Prime Minister from being dismissed from office and announced as incapable of fulfilling their duties.

In July 2023, the Knesset also passed the “reasonableness law” which took away the power of occupation’s the Supreme Court to declare government decisions unreasonable. Who was the Prime Minister back then? It was Benjamin Netanyahu. It was widely announced and reported as Netanyahu trying to overhaul the occupation’s “legal system”.

These are to name a few of how much power and influence he has in occupied Palestine. They cannot even hold him accountable for such crimes, how would they hold him accountable for a genocide they approve of?

Irrelevance of official capacity

But would he not benefit from his capacity as an official? Well, according to Article 27 (1) of the Rome Statute, the latter applies equally to “all persons without any distinction based on official capacity.”

Not only this but it also specifies that the “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative, or a government official shall in no case exempt a person from criminal responsibility” under the Statute, and should not even affect the sentence.

The most important part is immunities. Section 2 of the same Article says that immunities or special procedural rules linked to the official capacity of a person under both national and international law “shall not bar the Court from exercising its jurisdiction over such a person.”

Some legal scholars might argue that this only applies to State Parties of the ICC, or might argue based on special mission immunity or certain precedents, however, an article by Hugh King, Judges’ Clerk to the High Court of New Zealand at Auckland, addresses this issue and mentions the case of Prosecutor v Charles Ghankay Taylor, specifically submissions of the Amicus Curiae on Head of State immunity by Philippe Sands and Alison Macdonald.

King says that international tribunals mentioned by Sand and Macdonald all have one thing in common and that is “consent of States whose nationals were being tried.” So, he says, this consent alongside the constitutive basis of an international tribunal explains why international tribunals can actually try State officials and overlook immunities.

Referencing the examples that happened in international tribunals again, King said that Statutes can steer away from the rules set by customary international law rules on immunities because they were “were adopted by the Security Council under Chapter VII of the Charter, and as such, bind all UN member States.”

According to Article 103 of the UN Charter also mentioned by King, the obligations of all member states under the Charter prevail over any other obligation through a different international agreement. This means, as he said, that UN member States therefore indirectly have consented to waiving their immunities.

“Mother” is a hypocrite

In 1943 the United Nations War Crimes Commission(UNWCC) was established in London with a satellite office in China by seventeen allied nations, including China and India, before the end of World War II and it had its main focus on war crimes.

Guess who was deeply involved in its creation and work? The United States of America which back then supported launching a permanent international criminal tribunal through a multilateral treaty.

In 1945, the International Military Tribunal at Nuremberg was created, also by deep US involvement, to try German wartime leaders for crimes against peace, crimes against humanity, and war crimes and it specifically stated that individuals are accountable are accountable for international crimes regardless of their official position. It was followed by another similar tribunal a year later to try crimes by Japanese leaders.

In 1993, the International Criminal Tribunal for the former Yugoslavia was established which of course, once again, the US had a deep involvement in and even took part in forming its statute and other essential documents. This also applied to the establishment of the International Criminal Tribunal for Rwanda in 1994.

In 1995, the US was part of the Ad Hoc Committee on the establishment of the ICC and then later took part in a preparatory session before the Rome conference and the conference itself as it even aided in drafting the Rome Statute but then ended up voting against it.

In 1999, the US was quick to draft a Foreign Relations Authorization Act including prohibitions against sending any US financial support to the ICC and the extradition of any US citizen to a foreign country that may surrender them to the ICC.

But in 2000, it aided in drafting the ICC Rules of Procedure and Evidence alongside the Elements of Crimes part of the Rome Statute. It then signed the Rome Statute but did not ratify it and declared in 2002 that it had no intention of ratifying it.

This back and forth went on for years after as the US took part in creating the basis of a Court it clearly refuses to be a part of and for obvious reasons that were evident in a pattern of US behavior over the years utilizing international organizations, laws, courts for its benefit then standing against them when they scratch those benefits, just like it is currently doing in the case of “Israel.”

As previously mentioned, it is still not clear how the bedtime story will end, but in one way or another, it might not look very good for the US and “Israel” even away from all the legal and political talk, “You reap what you sow” has always come true and if there is one thing you can learn from How to Get Away with Murder is that, you do not.