In November, the International Criminal Court (ICC) issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Israeli defense minister Yoav Gallant. The arrest warrants come after a thorough investigation by prosecutor Karim Khan, which concluded that Gallant and Nethanyahu allegedly orchestrated several war crimes and crimes against humanity during the Gaza war. Khan also requested the court to issue arrest warrants against Hamas leaders Yihyah Sinwar, Mohammed Deif, and Ismail Haniyeh due to their involvement in orchestrating the October 7 attack. This would prove impossible as Israeli forces assassinated the aforementioned Hamas leadership.
All European countries except Russia are among the signatory states to the Rome statute, which makes them committed to implementing the court’s decisions. Some European countries had nevertheless shown ambiguity about whether they would arrest Netanjahu and Gallant if they were to set foot on their territory. Shortly after the issuing of the warrants, Viktor Orbán, the prime minister of Hungary, explicitly declared that he would not implement the warrants and even invited Netanjahu to visit the country. Other countries, although not as explicitly, signaled similar messages. Germany, while acknowledging its obligations as a Rome Statute signatory state, also stressed its historical responsibility towards Israel by avoiding giving a concrete statement regarding the issue. France and Italy signaled that Netanyahu enjoys immunity as a serving head of state of a non-signatory state of the Rome Statute, citing a highly controversial legal point of view. Most recently, Polish Prime Minister Donald Tusk granted Nethanyahu “special permission” to attend the annual commemoration of the Auschwitz liberation on Polish territory.
One of the perils of the European project is the respect for and adherence to the rule of law and human rights. This principle is a result of a long history of authoritarian regimes and terrible wars across Europe, which has shown the absolute necessity of a rules-based international order. This rules-based international order must be capable of guaranteeing accountability for severe human rights violations when states are incapable of doing so. This function is being fulfilled by the International Criminal Court, which enables the prosecution of individuals responsible for crimes against humanity, war crimes, genocide, and the crime of aggression, where states fail to do so themselves.
European countries and establishments until recently mostly respected and praised the ICC; however, the ICC has historically mostly ever prosecuted Western adversaries such as former Libyan President Muammar Gaddafi, former Sudanese leader Omar Al-Bashir, and now, most notably, Russian President Vladimir Putin. Whereas previously, the court’s decisions were in alignment with European foreign policy, the arrest warrant against Netanyahu threatens to disrupt this. This begs the question: “Does Europe actually value the principles of international law or merely use them as a political and diplomatic tool?”
The case of Israel-Palestine shows just how crucial the ICC is in mitigating violence and pursuing accountability. The policy of granting impunity to Israeli government figures has serious consequences in terms of human rights violations and regional stability. Such policy incentivises the extreme-right Israeli government to continue maintaining its apartheid system in the Occupied Palestinian Territories and commit horrendous war crimes in Gaza, where only now a fragile ceasefire agreement has been reached. Unfortunately, international criminal justice remains one of the few measures that exert meaningful pressure on Israeli government figures. Giving up on it would cause the Israeli government to show even less restraint, which in turn would increase Palestinian violent resistance and terror attacks. As always, innocent civilians on both sides would have to pay the price of Israeli officials’ impunity.
Preserving and respecting the ICC is not only in line with European values but is also a European political interest. If Europe only respects the ICC when it acts against its adversaries, other countries, which are also signatory states of the Rome Statute, will adopt the same policy in the opposite direction. As such, countries in the Global South, which maintain relations with Russia, could, for example, declare not to enforce the arrest warrant against Putin. This could place EU diplomatic actions abroad in peril.
With the comeback of Donald Trump to the White House and his utter disregard for international law, Europe has an even greater responsibility towards preserving the rules-based international order. The Trump administration – a close ally of Netanyahu – will likely issue retaliatory sanctions against the ICC. Europe must not succumb to American pressure and maintain respect towards the court. To achieve this, European countries must first and foremost respect and uphold its decisions. Giving Israeli leaders impunity is unfortunately a step in the wrong direction. Thankfully, it is not too late to change course.
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