Netanyahu’s arrest warrant will throw the very future of the ICC into question

European leaders are publicly steadfast in their support of the Netanyahu warrants, but that steadfastness will soon be tested, writes Chris Stephen

Twenty years ago, to the puzzlement of locals, peace activists descended on a windy beach in the Netherlands and began digging foxholes. It was a symbolic protest against a US law signed in by George W Bush, allowing the president to use “all necessary means”, including military force, to secure the release of any US or allied citizen detained by The Hague’s International Criminal Court.

Though the law, known more commonly as the “Hague Invasion Act” remains on the books, no American was ever indicted by the ICC and the US Marines never arrived. Tensions between Washington and the court subsided. Until now.

The indictment of Israeli premier Benjamin Netanyahu for war crimes and crimes against humanity has set off a firestorm across the Atlantic, with newly empowered Republicans promising retribution. Senate majority leader John Thune branded the indictment of Netanyahu, along with former defence minister Yoav Gallant, “outrageous, unlawful and dangerous”. And he vowed America would strike back.

America’s House of Representatives has already passed a bill sanctioning the ICC for investigating Israel over the Gaza war. In the summer, Democrats in the Senate stopped it going further, but come January that will change. Both houses of Congress and the presidency will be Republican, with the bill almost certain to become law.

And that is likely only the start. Trump has yet to comment on the indictments, but in the past has made no secret of his strong support for Netanyahu. In his first presidency, he banned ICC prosecutors from American soil because of the mere possibility they might indict Americans.

He is almost certain to reinstate that ban. Likely, also, to demand immunity from arrest for Netanyahu from ICC member countries. The ICC is not part of the United Nations, but is made up of its 125 member states. Each is obliged to arrest Netanyahu if he sets foot on their soil, and many – including Ireland, the Netherlands, Jordan and South Africa – promised this week to do so.

Netanyahu could face arrest if he came to the UK, but the prime minister stopped short of confirming this would indeed be the case. A spokesperson for Keir Starmer said the government would “fulfil its legal obligations” in relation to the arrest warrant – but said that the domestic process linked to ICC arrest warrants has not been used by the UK before.

However, the ICC constitution contains an obscure provision – Article 98 – allowing countries to give immunity to Israel. The provision amounts to a get-out-of-jail-free card, allowing members to give immunity to any non-member states they choose. Britain, for instance, could make an Article 98 declaration concerning Israel, allowing Netanyahu to visit without fear of arrest.

Twenty years ago, the United States got more than 100 countries to sign such Article 98 deals, promising never to surrender Americans to the ICC. It did this by threatening to otherwise cut aid payments, banking facilities and military cooperation. The signs from Capitol Hill are that the US will demand the same for Israelis, with the same mix of punishments for states refusing.

The Hague insists the indictments are strong. The Israeli pair are both charged with crimes against humanity for blocking aid to Gaza following last year’s 7 October massacres. Both Netanyahu and Gallant said publicly that was their intention at the time. For Hague prosecutors, that means there are reasonable grounds to charge them with denying aid.

But that cuts no ice in Washington – partly because the indictments look one-sided. Originally, the Hague planned on indicting three Hamas leaders alongside the Israelis. But two are dead and the third, Hamas military chief Mohammed Deif, is missing. Israel insists he is dead, and though Hamas claims he is alive, it has yet to provide proof. To Americans, it looks like when it comes to Gaza, only Israelis are being charged.

European leaders are publicly steadfast in their support of the Netanyahu warrants, but that steadfastness will soon be tested. Trump has already huffed about quitting Nato unless it shoulders its share of defence spending. He might go further, threatening to end military cooperation with alliance members refusing those Israeli immunity exemptions.

Exactly that threat was made 20 years ago. Then-defence secretary Donald Rumsfeld threatened to pull Nato’s headquarters out of Brussels, unless Belgium signed an Article 98 against the remote possibility Americans at the headquarters would be charged with war crimes.

How to cope with American retribution will be much on the minds of the Assembly of States Parties, the court’s governing council, when it holds its annual meeting in The Hague next month. Already on its plate is the biggest potential scandal in the court’s history, over allegations of sexual misconduct against prosecutor Karim Khan. Khan, who denies the claims, has pledged to cooperate with an investigation, but the issue has poisoned the atmosphere around the court.

All this is happening with a court that has failed to live up to its billing as the world’s first permanent war crimes court. In its 22-year existence, and despite more than £2.5bn spent, it has jailed just six war criminals.

The fear of the court’s member states is that Trump will force them to make an uncomfortable choice: give Israelis immunity and torpedo the court’s credibility, or refuse to do so and see the Atlantic alliance splinter.

Chris Stephen is the author of ‘The Future of War Crimes Justice’, published by Melville House UK