International Criminal Court Takes a Stand: A Critical Analysis of the Arrest Warrants for Netanyahu, Gallant, and Deif

Written by Stefan van der Berg

On November 21, 2024, the International Criminal Court (ICC) has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant for alleged “war crimes”. The court said on Thursday that there were “reasonable grounds” to believe Netanyahu and Gallant “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival”.

The ICC also issued an arrest warrant for Hamas military chief Mohammed Deif for alleged “crimes against humanity and war crimes”. Israel said in August that Deif was killed in an air strike in southern Gaza the previous month.

ICC Prosecutor Karim Khan first applied for the warrants six months ago. In August, Khan called on the court to make a decision, saying, “Any unjustified delay in these proceedings detrimentally affects the rights of victims.” This development marks a significant milestone in the pursuit of international justice, but it also raises critical questions about the ICC's jurisdiction, the implications of the warrants, and the challenges that lie ahead.

The ICC's Decision: A Landmark Moment

The ICC's pretrial chamber rejected Israel's challenge to the court's jurisdiction and found reasonable grounds to believe that Netanyahu and Galant are responsible for committing war crimes and crimes against humanity in relation to Israel's war in Gaza. This decision is significant, as it marks the first time a Western allied leader has been subject to an ICC warrant. The ICC's chief prosecutor had requested arrest warrants for two other Hamas leaders, Ishmael Haniyeh and Yahya Sinwar, but these were withdrawn following confirmation of their deaths.

The Reaction: A Mixed Bag

The reaction to the ICC's decision has been mixed. Israel has claimed that the ICC's decision is anti-Semitic and biased, while the United States has called it "outrageous." Hamas, on the other hand, has hailed the decision as an "important historical precedent" and a "correction to a long path of historical injustice." At least two EU countries, Italy and the Netherlands, have said they would arrest Netanyahu and Galant if they enter their territory, while several other European countries have promised to comply with the ICC's rules.

The Implications of the Warrants

The ICC's decision has far-reaching implications for Netanyahu and Galant, as well as for international relations. The ICC itself does not have an enforcement mechanism, and it is the obligation of all member states to carry out arrests and prosecutions. This means that Netanyahu and Galant could be arrested if they travel to any of the 123 countries that are party to the Rome Statute, including most of Europe, South America, Central America, Africa, and Oceania. It is also important to note that the ICC does not conduct trials in absentia: the defendants must be physically present in order for the case to begin.

All defendants are presumed innocent until proven guilty beyond reasonable doubt before the ICC. Each defendant is entitled to public and impartial proceedings. If and when suspects appear, they are provided with a defence team if needed and undergo a confirmation of charges hearing before the case can proceed to trial.

Once the defendants appear before the court, a “confirmation of charges” hearing takes place, at which the judges will decide, after having listened to the defence, whether the prosecutor evidence is still solid enough for the case to move to trial.

If they decide to go ahead, the defence and prosecution will call witnesses and present evidence. Legal representative of the victims also has the right to present their observations in person.

The court then decides if the defendants are innocent or guilty, and what their sentence should be.

Finally, the defendants have the right to appeal to the ICC Appeals Chamber, made up of five judges, different from the three judges of the pretrial and the other three trial judges.

The Road Ahead: Challenges and Uncertainties

The ICC's decision raises critical questions about the future of international justice.

Will Netanyahu and Galant be arrested and prosecuted?

Will the ICC's decision lead to a shift in the balance of power in the Middle East?

And what are the implications for international relations and global politics?

The ICC's Role: A Critical Assessment

The ICC's decision has sparked debate about the court's role and effectiveness. Critics argue that the ICC is biased and selective in its prosecutions, targeting African countries and ignoring crimes committed by Western powers. Defenders of the ICC argue that the court is an independent judicial institution that is not subject to political control, and that its decisions are based on legal criteria and rendered by impartial judges.

Conclusion

The ICC's arrest warrants for Netanyahu and Galant mark a significant moment in the pursuit of international justice. However, the road ahead is fraught with challenges and uncertainties. As the international community grapples with the implications of the ICC's decision, it is essential to critically assess the court's role and effectiveness, and to consider the broader implications for global politics and international relations.

A Christian Perspective (By Mike Burnard an Analytical Strategist at dia-LOGOS)

One of my previous leaders at Open Doors always reminded us that “in life, the challenge is in the balance”. This is perhaps the one single lesson that Christians need to apply in the Gaza conflict more than anything else. “The challenge is in the balance” The Gaza conflict is currently viewed from two angles. Many believers observe from the angle of compassion while others are looking from the angle of justice. It often seems that these two viewpoints are in conflict with one another. Both are needed - but in equal measures. E'Jéi Osborne once said that “Justice without mercy is tyranny” and this would probably best describe what lives in the hearts of both the Hamas terrorists - who seeks justice for their occupied territory, as well as the Israel Government – who seeks justice for the October 7 attack. In both instances mercy is completely non-existent and the brutal and ugly face of tyranny is exposed in the fullest - both on 7 October and the aftermath that has now resulted in the death of more than 44,000 people.

For Christians this poses a tension – and rightly so.

• Hamas is a terrorist movement; how can we feel compassion towards a group that killed babies, abducted women, destroyed the lives of innocent people in Israel and then use children as human shields in their own country?

• Doesn’t Israel have the right to defend themselves against a group that wants to see their demise?

• How do we maintain a spiritual balance between seeking justice for what happened on 7 October and still feel the pain of compassion for the innocent victims who are now suffering the consequences simply because they belong to the same cultural group.

• Or, as one of my friends wrote on Facebook: “The entire blame lands in the lap of Hamas, who the majority of Palestinians in Gaza continue to support. Death of innocent people on either side is tragic. Hamas needs to surrender and end this, but they continue to fire rockets at Israel. I want it to end as much as you do. But as I said, it won’t end until Hamas surrenders. As a follower of God’s Word, you can see why I can’t just tell Israel to continue to allow terrorists to attack them.

There is no doubt a genuine pursuit for justice but a complete lack of compassion

So, is it even possible to seek justice and still have a heart of compassion for the aggressors, the victims and the perpetrators? The answer is only discovered when we find the ability to balance justice and compassion. This will turn RETRIBUTIVE JUSTICE into REDEMPTIVE JUSTICE and ultimately into RESTORATIVE JUSTICE

Retributive Justice

Retributive justice, which can also be called criminal justice, focuses on how to punish crime. It’s based on the idea that when wrongdoing is committed, the wrongdoer should get a proportionate punishment. That doesn’t mean the wrongdoer should be subjected to exactly the same ordeal (i.e. if someone hits someone in the face, they don’t need to be hit back as their formal punishment), but it needs to be proportionate. Those who study retributive justice also tend to emphasize the need for indifference, meaning that justice shouldn’t be personal or based on revenge. While many justice systems include some kind of retributive justice, its effectiveness is debatable. Considering the flaws in many criminal justice systems, retributive justice can also end up harming innocent people or unfairly punishing certain groups over others.

The current conflict in Gaza is a classical case of retributive justice. This was evident when Mr. Benjamin Nethanyahu, the Prime Minister Of Israel, addressed the media soon after the 7 October attacks. His references to violent biblical passages raised alarm. He compared Hamas to the nation of Amalek from the Book of Samuel. That passage says to smite the Amalekites - killing each and every one of them - including babies, including their property, including the animals.

Restorative Justice

Only redemptive justice can lead to Restorative Justice. Retributive justice leads to death, redemptive justice leads to life. Restorative justice focuses on helping victims of crimes, but it also wants to help offenders understand the harm they’ve caused. The goal is repair, not punishment. Engagement, accountability, cooperation, and community are all essential principles. Restorative justice practices have been used in many criminal justice cases, but they’ve also been adopted during conflicts involving families, schools, and workplaces. Unlike retributive justice, restorative justice doesn’t focus on what criminals deserve, but rather on what victims need to heal and what communities can do to prevent re-offending.

So, how do we respond? Do we seek justice with punishment or justice with redemption? Only one will lead restoration.