The court in The Hague may equate Netanyahu with Putin. Why is this bad for Ukraine?

The International Criminal Court (IСС) may issue an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and Chief of Staff Herzi Halewi in connection with the military operation in the Gaza Strip. According to The New York Times, the Israelis may be accused of overly harsh response to the Hamas attack on Israel on October 7. It is expected that another reason for the charges will be obstruction of the delivery of humanitarian aid to the Gaza Strip.

If the International Criminal Court (ICC) actually issues an arrest warrant for Netanyahu, Gallant and Herzi Halewi, then this will be bad not only for Israel, but also for Ukraine. Why is this so? More about the risks for our country below.

The jurisdiction of the International Criminal Court (ICC) includes crimes that were committed either on the territory of a state party to the Rome Statute or by a citizen of that state. Unlike Israel, Palestine has acceded to the Statute and the International Criminal Court (ICC) has jurisdiction to hear cases in the Gaza Strip and West Bank. Moreover, since March 2021, the Court's prosecutor announced the opening of an investigation into the situation in Palestine, and in the fall of 2023 he confirmed that he was conducting an investigation that concerns the escalation of hostilities and violence following the attacks of October 7, 2023.

Israel's operation against Hamas in the Gaza Strip is accompanied by the destruction of houses, mass deaths of civilians, and a humanitarian catastrophe. As a result, seven months after Hamas attacked and killed some 1,200 people, the pendulum of public opinion has swung from compassion for Israelis to sympathy for Palestinians. Now Tel Aviv is being accused of genocide, and anti-Semitic, anti-Israeli and pro-Palestinian sentiments are growing around the world.

As the humanitarian catastrophe in the Gaza Strip grows, not only Arabs, but increasingly thousands of Europeans and Americans are taking to the streets with anti-Israeli slogans. In recent days, large-scale protests against Israeli actions in the Gaza Strip have not subsided on American university campuses. The students are calling for a permanent ceasefire, demanding a cut in arms supplies to Israel, an end to support for Tel Aviv, and an amnesty for students and teachers who have been subject to disciplinary action.

Against this background, even if the International Criminal Court (ICC) issues arrest warrants for Hamas leaders, this will not mitigate the large-scale negative consequences for Israel in general and Netanyahu in particular.

The decision of the International Criminal Court (ICC) to issue arrest warrants for members of the Israeli political and military leadership would not only be a humiliating blow to Israel's reputation for justice, but would also affect Tel Aviv's further military campaign against Hamas. In addition, as Bloomberg writes, the United States of America and other Western countries fear that the decision of the International Criminal Court (ICC) will jeopardize the continuation of ceasefire negotiations between Israel and Hamas: Tel Aviv may refuse the truce if charges are brought against representatives of the Israeli leadership.

Not only Tel Aviv, but also its allies are trying to prevent the International Criminal Court (ICC) from issuing arrest warrants for high-ranking Israelis.

Thus, Washington stated that the International Criminal Court (ICC) investigation into Israeli actions in the Gaza Strip, as well as the issuance of arrest warrants for Israelis in connection with this, is beyond the jurisdiction of the Court. In addition, Congressional representatives warned the Court of retaliatory measures if the warrants were issued. For example, about the adoption of sanctions against the International Criminal Court (ICC) employees involved in the investigation of the United States of America and its allies. Washington itself has a complex history of relations with the International Criminal Court (ICC). 

Let us recall that in 2002 the United States of America withdrew its signature to the Rome Statute. And since 2017, then Chief Prosecutor of the International Criminal Court (ICC) Fatou Bensouda has been seeking an official investigation into the actions of the Taliban, Afghan army soldiers, and American troops in Afghanistan. But in the fall of 2021, Chief Prosecutor of the International Criminal Court (ICC) Karim Khan announced that the Court in The Hague would not investigate the alleged crimes of the United States of America military in Afghanistan.

Will the International Criminal Court  (ICC) heed these warnings from Washington? Or, unlike the conservative International Court of Justice, will it make a radical decision? The story of the International Criminal Court  (ICC)  issuing arrest warrants for Vladimir Putin, the Presidential Commissioner for Children's Rights Maria Lvova-Belova, the commander of long-range aviation of the Russian Federation Sergey Kobylash, and the ex-commander of the Russian Black Sea Fleet Viktor Sokolov demonstrates that its judges are not afraid to take extraordinary steps.

The issuance of an arrest warrant for Putin was an incredibly important event. For Ukraine, this is a step towards restoring justice and punishing the aggressor. For the rest of the world, this is a demonstration that the current head of state, even a permanent member of the UN Security Council, cannot hide behind immunity and will be charged with crimes. Let us recall that before Putin, the International Criminal Court (ICC) issued warrants only for two current heads of state - Sudanese President Omar al-Bashir and Libyan leader Muammar Gaddafi.

But before Putin was charged with a war crime - the illegal deportation of children from the occupied territories of Ukraine to the Russian Federation during the Russian invasion of our country, the International Criminal Court (ICC) collected a significant evidence base. Therefore, one of the key questions in the current Palestinian case is whether the Court will have enough evidence to bring charges against representatives of the political and military leadership of Israel?

Of course, the Hamas attack on Israel on October 7 does not give Israelis the right to commit war crimes. And justified accusations of violating international humanitarian law are being made against Tel Aviv. And if the International Criminal Court (ICC) turns a blind eye to war crimes committed, say, by Israelis, Americans, Ukrainians, then this will not contribute to strengthening the authority of the Court and the establishment of international law.

If the International Criminal Court (ICC) has compelling reasons to issue an arrest warrant for Netanyahu, then it is in Ukraine’s interests to agree to this decision. What is important to us is the legal purity of the International Criminal Court (ICC) case against Putin and the absence of doubts about the Court’s bias. And if a warrant is issued against Netanyahu, this will be a demonstration of the ICC’s equal treatment of the leaders of developed countries and third world countries, an example of the fact that for the Court it makes no difference who commits the crime.

However, even in this case, the International Criminal Court (ICC) will not escape accusations of bias: some people might say that the issuance of arrest warrants for Netanyahu and other Israelis occurred because the Court simply “give in” to pressure from countries of the Global South. This prospect is well understood in The Hague: judges do not live in a vacuum and take risks into account. As well as the fact that issuing an arrest warrant without guaranteeing the implementation of the Court’s decision will damage the prestige of the the International Criminal Court (ICC) and lead to the erosion of the authority of international judicial institutions.

But if the International Criminal Court (ICC) issues arrest warrants for members of the Israeli leadership without issuing arrest warrants for Hamas leaders for the crimes committed on October 7, then a dangerous situation will arise where legal mechanisms turn the victim of an attack into the accused. This, in turn, will neutralize the significance of the arrest warrants issued for Putin and other Russian officials and military personnel. Such a result is precisely in the interests of the Kremlin’s political leaders, which worries Kyiv.

Thus, the situation with the possible issuance of an arrest warrant for Netanyahu and other Israelis puts not only Israel, but also the International Criminal Court (ICC) in a difficult position. And for Ukraine it creates additional risks.