They expected it, but they still say they are shocked and outraged at having been included in the club of “monsters” or the list of war criminals in The Hague. The request for arrest issued by the prosecutor of the International Criminal Court against the Prime Minister of Israel, Benjamin Netanyahu, and against his Minister of Defense, Yoav Gallant, is a disruptive political fact on the international scene even before being a formal act.
Yes, because if on the one hand that mandate cannot in fact be executed (we will see later why), on the other hand the substance of the provision is exquisitely a remote-guided missile against the current government structure in Jerusalem and not the first piece of a personal judicial proceeding.
On this last point, it is however important to specify that the International Criminal Court – unlike the International Court of Justice, which is also based in The Hague – exercises its jurisdictional power over natural persons and not over national states, in a manner complementary to criminal jurisdiction of the latter. His expertise – and this is the crux of the matter – is related to the most heinous crimes of this world: genocide, crimes against humanity, war crimes, crimes of aggression.
In accordance with international law, that document sent to Jerusalem today equates the leader of a democratic country like Bibi Netanyahu to any terrorist (many Hamas leaders also received the same warning). Of course, the prime minister is in “good” company: the executioners of the former Yugoslavia (Milosevic, Karadzic and Mladic) are also part of the club; the massacres of the Tutsi in Rwanda. And heads of state or government of the caliber of Vladimir Putin and Bashar Al Assad, for example.
With the difference that neither Putin nor satrap Assad lead similarly democratic institutions (with the Russian slaughtering civilians in Ukraine and the latter exterminating them with gas). Netanyahu, however, does. And it is the first time that a Western leader has received such a provision. Of the goodness of which, moreover, the chief prosecutor of the International Criminal Court, the British Karim Ahmad Khan, says he is more than certain: “I only accept the judgment of the judge, of God and of History” is the clear thought of the magistrate.
The real powers of the Court
Be that as it may, little changes for the Israeli press at the moment: attacked on all fronts, not just figuratively, he knows full well that his enemies far outnumber his friends, even (perhaps above all) at home. And this has been the case for a long time. Is he to be considered guilty? The Court will decide. But it would be naive to think that the measure is completely unrelated to the ultimatum that Bibi Netanyahu received from General Benny Gantz, who today shares the war cabinet with him.
Gantz, in fact, has just declared in a dramatic press conference that “by June 8th” he demands a six-point action plan on Gaza, which explains how to bring the hostages home, how to succeed in eliminating Hamas and how to demilitarize the Strip. Furthermore, he wants a round table made up of the United States, the European Union, Arab countries and Palestinian representatives, which lays the foundations for a future in Gaza alternative to the Israeli occupation (but also to Hamas and Al Fatah).
After this domestic tile, for Netanyahu there is now added the persecutory shame of international law, which would like to be the proverbial knockout blow for the prime minister in office. But it is more likely that this shot will not succeed. And the reason should already be clear to many, considering that his colleague Vladimir Putin has been sleeping soundly since March 17, 2023, when he in turn received an arrest warrant on charges of deportation. After shrugging his shoulders, Putin continued to massacre civilians and bomb Ukrainian cities without fear that some zealous official would come to arrest him.
This is because the Court does not exercise jurisdiction in countries that are not signatories to the Statute: it means that states that do not adhere to the Rome Statute (the founding act of the Court) can remove their citizens, whether investigated or convicted, from the clutches of international law . And coincidentally, neither Russia nor Ukraine, nor the United States or China, nor even Israel signed it. Or rather: Israel signed, but then did not ratify the convention.
Of course, from now on if Putin or Netanyahu landed in Italy, the Rome prosecutor's office would have to send the Carabinieri to arrest them and send them to the Netherlands to answer the charges before an international judge. But Putin, like Netanyahu, really can't afford holidays at the moment: they are too involved in the two great wars that mark our era; furthermore, they have reason to fear that someone might take away the throne on which they sit. Therefore, as long as they remain in power and do not cross the borders of their respective countries, they can afford to ignore the Court of The Hague, without even having to worry about proving that the accusations against them are unfounded.
In fact, if it is true that the Court's functions and powers apply to the territory of any State, even if it is not a signatory, for its jurisdiction to be truly effective that State must have requested it. We are therefore at the “Mexican standoff”, that paradoxical situation in which we keep each other at gunpoint with weapons, so that no one can attack without being attacked themselves. A bit like the Security Council of the United Nations, of which the Court is a daughter: a veto from just one member country is enough and any accusation lapses.
In fact, the International Criminal Court was also conceived and desired by the UN General Assembly when, in the Convention for the prevention and punishment of the crimes of genocide (art. 6 of resolution no. 260), it had foreseen the possibility for States to refer judgments on crimes of genocide to a specially constituted international tribunal. Which is precisely the Criminal Court for individuals and the Court of Justice for state entities.
It was the Treaty of Rome in 1998 that formally gave birth to the International Criminal Court, of which the Secretary General of the United Nations is the custodian. However, while 193 countries are members of the UN today, only 123 countries have adopted the Rome Statute. And in any case, it is also the lack of a judicial police that executes arrest warrants that makes the Court's powers almost null.
If the problem is only postponed
Net of what has been argued so far, as suggested by the lawyer expert in conflict management, Fabio Valerini, «the value of these documents is not exactly null, because if it were, this would mean that the same international institutions which instead have been designed precisely to prevent, mitigate or resolve disputes between States”. And there is also another reason, or rather two, why that provisional and precautionary measure is nevertheless worthy of note: «It tells us that the accusation has an abstractly possible legal basis, the Court being competent in such matters; furthermore, the provisional measures indicate how one should behave during a conflict for the protection of civilians”, and therefore this is jurisprudence.
In short, the Court's decisions do not function as a club to instantly dethrone a “monster”, but they still affect the techniques of manifestation of the conflict, of which weapons are only one aspect and diplomacy is another, and not indifferent. In the series, there are not only bombs but also statements of principle, of which the parties involved make spear and shield as they like and according to convenience: just as for the United States and the Ukrainians Vladimir Putin is a deporter of children, at same way for the Palestinians Benjamin Netanyahu is a genocide.
What lesson can we draw from all this? That international institutions are in themselves abstract and ineffective in influencing the bellicosity of individual states, but at the same time war is also fought with international debates and relations. Consequently, in the long run, both Putin and Netanyahu should not “remain calm”, to use an expression dear to our politicians, nor underestimate the power of law, which moreover (unlike wars) does not have an expiry date and can therefore be exploited retrospectively. Especially when the accused are no longer at the helm of their respective governments.
A circumstance that may never happen for Putin, but will certainly happen sooner or later for Netanyahu. Provided – let's not forget – the judge accepts the charges against the Israeli prime minister. Perhaps then we will be able to better evaluate the real weight of the International Criminal Court.
