The prosecutor of the International Criminal Court (ICC) took the world by surprise. From the congratulations of South Africa to the “scandalized” denunciation of the United States, its decision to request the issuance of an arrest warrant against Benyamin Netanyahu had the effect of a bomb. The Israeli Prime Minister and Israeli Defense Minister Yoav Gallant are among those targeted by this request, as are three Hamas officials.
For the Israeli leader, this announcement is a powerful repudiation of his all-out response to the Gaza Strip, after the bloody Hamas attack on October 7. Karim Khan accuses Benjamin Netanyahu in particular of having “deliberately starved civilians” but also of “extermination and/or murder”. According to the Hamas Ministry of Health, nearly 35,700 people have been killed since the start of the Israeli offensive in the Palestinian territory and, according to the UN, more than half of these victims are women and children. .
Only one public request has already been refused
Legally, “a war crime is an act which constitutes a violation of the laws of war” just like a crime against humanity which is “committed within the framework of a concerted plan, of an implemented policy” , executive Mathilde Philip-Gay, professor of public law at the University of Lyon-3 and author of the work Can we judge Putin? If the ICC decides to follow the requisitions against Benjamin Netanyahu and his minister, they will face serious charges.
In the history of the ICC, created in 1998, only “a single public request for an arrest warrant has been refused” by the preliminary chamber of the Court, recalls Master Sarah Coquillaud. The prosecutor specializing in international criminal law explains that it was that of Commander Sylvestre Mudacumura in 2012, whose arrest warrant was ultimately issued. However, many requests were filed under the seal of secrecy. “This is a semi-confidential request. The prosecutor publicly announced his request but we do not have it, it is under seal,” explains Mathilde Philip-Gay, who adds that the chamber’s decision will depend solely on the “evidence” provided by the prosecutor. France assured to “support” the judicial body and its “independence”.
Pressure and threats
But Karim Khan, accused of being biased, must face a political and media storm, just like his teams. The three judges who will decide on the merits of the evidence provided by the prosecutor are also subject to disproportionate pressure as the subject is sensitive and polarizing on a global scale. Even before the prosecutor’s announcement, twelve US senators had sent a threatening letter and organized a secret virtual discussion with senior ICC officials.
Proof of the earthquake of this decision, these same senators are now working on a law which would allow them to sanction Karim Khan and the judges of the International Criminal Court. But, for Sarah Coquillaud, “the Court is showing that international pressure does not affect it”. Because if these pressures are so strong, it is above all because the situation is serious for Benjamin Netanyahu.
The risk of being arrested in 124 countries
Even though Israel is not a member of the jurisdiction, like the United States, it may be very difficult for the Israeli Prime Minister to travel if this mandate is issued. “The Court does not have a police force, it cannot itself execute the warrants issued but the signatory States have undertaken to respect the rule of law,” underlines Sarah Coquillaud.
Theoretically, any of the 124 member states of the ICC should therefore arrest him if he went to their territory. “Some countries might not have the courage or the desire to stop it, especially when a huge power like the United States supports it,” says Sarah Coquillaud. Thus, the former Sudanese leader Omar el-Bashir traveled to several African countries that are members of the ICC after an arrest warrant was issued against him, without however being worried.
Living “on the alert”
However, “politicians do not always have the ability to stop extradition. The arrest of Benyamin Netanyahu would be a judicial decision which, in a democratic country, is independent of political decision,” recalls Mathilde Philip-Gay, for whom the Israeli Prime Minister would therefore have no certainty of remaining free, even if a country promised it to him.
Russian President Vladimir Putin, targeted by an ICC arrest warrant since March 2023, has also given up on several state trips such as a BRICS meeting which took place in South Africa last August. And this, despite the fact that Pretoria considers Moscow an ally. If the Court issues this arrest warrant, it will therefore be “very restrictive” for Benyamin Netanyahu who “will have to live permanently on the alert”, assures Mathilde Philip-Gay.
The expert recalls that in addition, the leader could be delivered to The Hague by his own country when he is no longer in power. Especially since if the ICC chooses the arrest warrant, Benyamin Netanyahu will be wanted for life. The Israeli Prime Minister and his allies therefore have every interest in throwing all their weight into this decision before it is final.