Latest Developments
• ICC Alleges Crimes Against Humanity and War Crimes: A pre-trial chamber of the International Criminal Court (ICC) in The Hague issued arrest warrants on November 21 for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, six months after ICC Chief Prosecutor Karim Khan made the request. The ICC said that it found “reasonable grounds” to charge Netanyahu and Gallant with “the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.” It also alleged “reasonable grounds to believe” that both bear “criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.”
• Bipartisan Condemnation by Israeli Leaders: Netanyahu’s office condemned the court’s decision, calling it a “modern Dreyfus trial” and underlining that there is “no war more just than the war Israel has been waging in Gaza since October 7th, 2023.” Opposition leader Yair Lapid called the warrants a “reward for terrorism,” while Israeli President Isaac Herzog said that the ICC’s “decision has chosen the side of terror and evil over democracy and freedom, and turned the very system of justice into a human shield for Hamas’ crimes against humanity.”
• Incoming Republican Congress Likely to Sanction ICC: A White House spokesperson said the Biden administration rejected the warrants and was “deeply concerned about the prosecutor’s rush to seek arrest warrants and the troubling process that led to this decision.” Rep. Mike Waltz (R-FL), who has been selected by President-elect Donald Trump to serve as his national security advisor, responded on X that the “ICC has no credibility” and that “You can expect a strong response to the antisemitic bias of the ICC [and the] UN come January.” Sen. John Thune (R-SD), who will become Senate majority leader in January, preempted the ICC’s decision on November 17, writing that the Senate should immediately pass sanctions on the ICC, following an ICC sanctions bill passed by the House of Representatives in June.
FDD Expert Response
“These politically driven, unmerited warrants are why every U.S. president of both parties has refused to join the ICC. These warrants are a dangerous abuse of the ICC — politics masquerading as a legal proceeding. They are contrary to the facts, international law, and the ICC’s own charter. Khan’s baseless request for arrest warrants for officials of Israel — which is not an ICC member, is committed to compliance with the law of war, and robustly self-polices alleged abuses by its officials — sets a dangerous precedent for officials of the United States, which is also not a member and is committed to compliance with the law of war.” — Orde Kittrie, Senior Fellow
“We need to be thinking bigger than visa bans on ICC officials. We need to make the ICC itself radioactive and cut off its access to money and services. We should be asking all of our allies who are ICC members to announce that they do not recognize the warrants as legitimate and will not enforce them. It’s Israelis today, but it’ll be Americans tomorrow. Every ally needs to go on the record now.” — Richard Goldberg, Senior Advisor
“The ICC lacks jurisdiction to issue these arrest warrants. Israel isn’t a member of the ICC, and Palestine shouldn’t have been allowed to join, lacking necessary characteristics of statehood, which requires a permanent population, defined territory, an independent government, and an independent capacity to enter relations with other states. The arrest warrants further violate the ICC’s complementarity principle given Israel’s robustly independent and internationally respected legal system, which has demonstrated its capability to investigate and prosecute violations of international law and the laws of war — but hasn’t been given adequate time or opportunity by the ICC or its prosecutor.” — David Daoud, Senior Fellow
“The ICC arrest warrants will be a moral stain on the court, not on Israel. That being said, this decision will have enormous implications for Netanyahu in particular and Israel in general. The European Union’s vow to enforce this arrest warrant will make foreign travel extremely difficult for Netanyahu. If Netanyahu’s plane has technical difficulties en route to the United States, where can he land? Would a European country arrest him? On the other hand, arresting Netanyahu would be extremely provocative — not only against Israel but also against the United States. Domestically, this might embolden Netanyahu’s supporters to argue that the international community is irredeemably anti-Israel and actively intervening in Israeli affairs.” — David May, Research Manager and Senior Research Analyst