Charging Netanyahu with War Crimes Shows the ICC Is Illegitimate and Not Fit for Purpose

The decision by the International Criminal Court (ICC) to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant on unsubstantiated war crimes charges, shows that the body is unfit for purpose, and should be defunded, dismantled, or both.

First, by law, the ICC is precluded from prosecuting any country that already has a valid judiciary system. This stipulation is the based on the treaty upon which the ICC was founded.

US defence attorney Alan Dershowitz is assembling a "legal dream team" to contest the charges. He emphasized that it would base its argument on the ICC's lack of jurisdiction.

"We will argue that the ICC has no jurisdiction against Israel, not only because it isn't a member, but also because the treaty that established that court precludes it from considering cases against any country with a valid judicial system that is willing and able to investigate the alleged crimes.... Israel has one of the best and most independent legal systems in the world, one that is both willing and able to investigate its own leaders. The Israeli courts have convicted and imprisoned a former prime minister, a former president and several ministers. Hamas has no such judicial system."

"Under international law, Israel has every right to defend itself after the horrific attack it suffered on October 7."

Prosecuting Israelis also represents the growing politicisation of key international bodies, especially those associated with the United Nations, which have no interest in adopting a balanced approach to their dealings with Israel.

Ever since the idea was first mooted at the ICC of bringing war crimes charges against prominent Israeli leaders, it has been obvious that the body's main priority has been to accuse Israelis, instead of concentrating their efforts on groups, such as the Iranian-backed Hamas terrorist organisation, that are responsible for provoking the latest round of bloodshed in the Middle East.

Under international law, Israel has every right to defend itself after the horrific attack it suffered at the hands of Hamas terrorists on October 7, 2023, and this has formed the basis for the Israel Defense Forces' military offensive to destroy the terror group's terrorist infrastructure and leadership in Gaza ever since.

Even though Hamas and its Iranian backers are unquestionably responsible for starting the Gaza conflict, bodies such as the ICC have opted to concentrate their focus on arraigning members of the Israeli government by bringing allegations of war crimes. By doing so, the body had made a mockery of both the institution and the laws it purports to uphold.

The real culprits

Hamas's willingness to exploit its barbarous slaughter of innocent men, women and children by using the October 7 massacres for its own nefarious ends was laid bare by a senior Hamas leader in a recent interview.

Khalil al-Hayya, the deputy leader of Hamas and the terrorist movement's most senior leader outside Gaza, told the BBC from his safe-house in Qatar in October that the massacres were entirely justified because they were necessary to place the Palestinian issue back on the global agenda. Without it, he said, the cycle of violence in the Middle East would not end.

The breathtaking cynicism reflected in al-Hayya's comments, in which he sought to justify the slaughter of innocents to support Hamas's political agenda, provides a rare insight into the depraved mindset of those responsible for planning and executing the worst terrorist attack in Israel's history.

Using acts of barbarism to pursue political objectives is exactly the type of tactic employed by Nazi Germany during the Second World War. If any act fully deserves to attract the undivided attention of ICC prosecutors, it is the atrocities committed by Hamas fanatics on October 7 last year.

Yet, rather than concentrating their efforts on making sure all the perpetrators of these crimes -- including cowardly Hamas leaders like al-Hayya who prefer to plot their atrocities from the safety of their comfortable refuge in Qatar or Turkey -- institutional bodies such as the ICC make Israel -- the real victim in these terrible events -- the primary focus of its attentions.

No credence should be given as well to al-Hayya's nonsensical suggestion that the October 7 attacks will somehow make the Middle East a safer place.

On the contrary, Hamas's merciless October 7 assault against Israel has been the cause of one of the worst outbreaks of violence witnessed in the Middle East since the Iraq war, with Israel forced to wage war on a number of fronts, including Gaza, Lebanon, Iran, Iraq, Syria and Yemen.

No power, no credibility

The ICC's international credibility, moreover, has been further shredded by its crass attempt to establish a moral equivalence between the barbaric actions committed by Hamas terrorists on October 7 and the IDF's subsequent military response, even though the IDF operates under the auspices of international law, while Hamas terrorists most certainly do not.

Similar criticisms of institutional bias have also been levelled against the International Court of Justice (ICJ), another UN-sponsored body, that adopted a highly biased position against Israel after the South African government, reportedly at the behest of Iran, used the body to accuse Israel of genocidal intent in its conduct of its military campaign in Gaza.

The ICC's token gesture, meanwhile, of also charging Hamas leaders Mohammed Deif, Ismail Haniyeh and Yahya Sinwar -- two of whom were dead at the time -- with war crimes provides yet another example of its refusal to address the realities of the Gaza conflict. Deif, who originally faced war crimes charges together with Hamas leader Ismail Haniyeh and Yahya Sinwar, who orchestrated the October 7 attacks, was killed in an Israeli air strike in August. Haniyeh and Sinwar similarly perished at the hands of the IDF.

In such circumstances, bringing war crimes charges against dead terrorists is not just futile, it highlights just how unfit the ICC is as an international body to adjudicate on highly complex issues such as the Gaza conflict.

"Without the lavish funding these bodies receive from Western governments, their ability to pursue their own twisted agenda will at least be severely curtailed."

The fact that arrest warrants issued by the ICC, which includes one issued against Russian President Vladimir Putin for war crimes in Ukraine, are rarely enforced will be of little comfort to Israel, even if it illustrates the ICC's overall impotence.

The decision to issue arrest warrants for Netanyahu and Gallant nevertheless prompted a furious reaction from the Israeli government, with Israel accusing the ICC of corruption, incompetence and more. Netanyahu's office characterised the "anti-Semitic decision" as something akin to "a modern Dreyfus trial".

Israeli President Isaac Herzog said the decision marked "a dark day for justice [and] humanity." It had chosen "terror and evil over democracy and freedom, and turned the very system of justice into a human shield for Hamas," he added.

Israel can also draw a degree of comfort from the fact that the perverse antics of supposedly neutral bodies like the ICC and ICJ have not gone unnoticed by world leaders.

A statement issued by the White House condemned the ICC's decision. "We remain deeply concerned by the prosecutor's rush to seek arrest warrants and the troubling process errors that led to this decision," the White House said. "The United States has been clear that the ICC does not have jurisdiction over this matter."

US President-elect Donald Trump is said to be considering sanctions against the British lawyer said to be responsible for persuading the ICC to issue arrest warrants for the senior Israeli politicians.

U.S. Representative Mike Waltz, who will serve as Trump's national security adviser, said the court had "no credibility" and promised "a strong response to the ­anti-Semitic bias of the ICC" when the Trump administration takes office on January 20.

Other countries, such as France, who are members of the ICC, have indicated they will not implement the ICC arrest warrants.

Another option that should be considered is for the incoming Trump administration's new Department of Government Efficiency (DOGE), to establish whether maintaining US funding for bodies such as the United Nations and its affiliates, the ICC and ICJ, all of which display a strong anti-Israeli bias, is in Washington's best interests. Certainly, without the lavish funding these bodies receive from Western governments, their ability to pursue their own twisted agenda will at least be severely curtailed.

© Gatestone Institute