'Netanyahu will be cast as a pariah': ICC order deepens Israel's isolation

In mid-May, the International Criminal Court (ICC) issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant over Israel’s genocidal war on Gaza.

Israel, with unwavering support from the United States in the form of arms and military aid, has been waging a devastating eight-month war in the besieged enclave, killing more than 36,000 Palestinians, most of them women and children.

The International Court of Justice (ICJ) is hearing a separate case of genocide brought by South Africa. Since the case began, the court has ruled that Israel is "plausibly" committing genocide in Gaza and that it must take measures to prevent it. In the second ruling, delivered on May 24, the UN top court ordered Israel to immediately halt its military offensive in Rafah, the southernmost city of Gaza.

The ICC’s announcement, considered long overdue by global human rights organisations in holding Israel accountable for its war crimes, has elicited varied reactions from the international community, highlighting a growing divide among Israel’s Western allies.

Since the ICC lacks an independent enforcement mechanism or police force, prosecuting war crimes depends on the cooperation of its 124 member states. Bound by the Rome Statute, the ICC’s founding document, signatory states would be obligated to arrest and turn over Netanyahu and Gallant to the court if warrants are issued.

Adnan Zulfiqar, an associate professor of law at Rutgers Law School, tells TRT World that the ICC Prosecutor’s request for warrants, alongside South Africa’s case against Israel before the ICJ, presents a fundamental dilemma for Israel’s Western allies. “Are they willing to sacrifice the rules-based order for Netanyahu’s right-wing government?”

While the US and Israel are not signatories of the Rome Statute, other Western states are. Several European governments, including France and Belgium, and even Israel’s close ally Germany, have expressed their commitment to adhering to the ICC's rulings.

In contrast, the White House and the UK stand out as exceptions among Israel’s other Western allies and the bulk of the international community, choosing to vehemently defend Israel against the ICC's jurisdiction.

US echoes Israel’s fear and anxiety

The US, Israel’s staunchest ally, has reacted to the news of Israel being brought now before two of the UN’s most important war crime courts with a similar fervour as Israel’s – one of fury and anxiety.

Karim Khan, the chief prosecutor of the ICC, and his office applied for an arrest warrant for Netanyahu and Gallant – the most responsible, Khan noted – for committing crimes of war and crimes against humanity “as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy.”

The investigation his office conducted, Khan said in a statement, showed evidence of Israel’s intentional and systematic deprivation of civilians in Gaza of objects indispensable to human survival, causing famine, using starvation of civilians as a method of warfare, and intentionally directing attacks against a civilian population, among other crimes contrary to articles of the Rome Statute.

Both Israeli and US officials met the application of international law with strong rebukes, releasing statements disfavoring the court’s decision, calling it “outrageous” and accusing it of antisemitism.

Israel even went as far as threatening a chief prosecutor of the International Criminal Court to pressure her into abandoning a war crimes investigation, as reported by The Guardian.

“The truth is that even the news that the request for arrest was made influenced Israel. Because, although the Israeli authorities threatened the Court, it should be noted that these threats are a manifestation of fear and anxiety,” Muhammed Demirel, Associate Professor of Criminal Procedure Law at Istanbul University, tells TRT World.

Similarly, a group of Republican senators in the US White House threatened both the court and its officials with economic and diplomatic sanctions, stating, "Target Israel, and we will target you."

The sanctions being threatened would target the ICC's employees and associates and include visa sanctions for the families of ICC personnel.

US officials’ determination to punish the international judicial organ for going after Israeli leaders, along with lawmakers’ rush to prepare sanction proposal bills, echoes Tel Aviv's anxiety and fear over its complicity in the same war crimes seeking to be prosecuted.

“In a shockingly transparent moment while complaining of ICC action against Israel, US Senator Lindsey Graham acknowledged that his concern was “if they do this to Israel, we’re next,” seemingly admitting to American commission of war crimes,” Professor Zulfiqar says.

While many say it seems unlikely that the ICC’s issue of arrest warrants will significantly change how the US engages with Israel or the intentionality it shows in holding Israel accountable for its violations of international law and war crimes, Zulfiqar notes that there is still significant change taking place.

The widespread support in the American public for a ceasefire, particularly among Democrats, and historic levels of sympathy for the Palestinian cause, especially among young people, have resulted in an increasing number of politicians questioning blind military support for Israel, Zulfiqar says.

Even former Speaker of the House of Representatives, Nancy Pelosi, a staunch supporter of Israel, signed a letter asking Biden to stop the transfer of weapons to the Netanyahu government, he adds.

Public pressure on US leaders might also be one reason the White House took a step back on May 28, opposing the passing of a sanctions bill against the ICC and court personnel.

Netanyahu cast as a pariah

Although it is not yet definite if, at all, Netanyahu and Gallant would be arrested and lead to their prosecution and conviction, experts say that the issuance of arrest warrants against the top Israeli officials, who have been enjoying a special status of impunity, represents a politically unprecedented move that could significantly limit their power and influence.

“This is the first time that charges have been brought against a head of government who maintains significant support from Western countries,” Dr Matt Killingsworth, a senior lecturer in International Relations at Australia’s University of Tasmania, tells TRT World.

He explains that Netanyahu's positioning of Israel within a Western, liberal democratic order, which has allowed him the freedom to travel and move around, could be substantially challenged if arrest warrants are issued.

Most Western countries are party to the Rome Statute, meaning they would be bound to cooperate with such warrants, restricting Netanyahu's ability to engage in diplomatic and political activities on the international stage.

Killingsworth says, “Netanyahu and Gallant will be cast as pariahs, suspected war criminals, and grouped with those that they have worked so hard to define themselves against.”

Therefore, the first major legal ramification of the signatories' obligations would be the impact on Netanyahu and Gallant’s ability to travel to many Western countries, which Netanyahu often visits and interacts with. This would severely limit his engagement, support, and influence in that part of the world.

“Two of Israel’s top officials would be unable to attend most international conferences or gatherings and be limited to very few places indeed,” Dr H.A. Hellyer, a scholar at the Carnegie Endowment for International Peace in Washington DC and the Royal United Services Institute for Defence and Security Studies, tells TRT World.

“When you couple this with the ICJ case, where Israel is in the dock on charges of genocide, it makes the isolation of Israel internationally very widespread,” he adds.

Furthermore, if the arrest warrants issued against Netanyahu and Gallant escalate to their prosecutions, the court’s judgment will not be limited to Netanyahu and Gallant, who are being tried as superiors, criminal law expert Demirel notes.

“Many Israelis will be prosecuted, including soldiers who carry out the orders of the commanding officer,” he says, citing Articles 25 and 33 of the Rome Statute.

The articles state that individuals are not absolved of criminal responsibility for crimes within the Court's jurisdiction committed under government or superior orders.

Anyone who orders, aids, abets, or contributes intentionally to such crimes is criminally liable if their actions further the group's criminal activities or if they are aware of the group's criminal intention.

“For this reason, the countries that have been supplying arms to Israel until today will no longer be able to provide this aid to Israel. Otherwise, the responsibility of their own leaders may be discussed in the International Criminal Court,” Demirel adds.

He says recent developments in Europe, such as Spain, Norway, Ireland, and Slovenia's formal recognition of Palestine's statehood, can be seen as examples of Western states’ attempts to put visible distance between themselves and Israel.