The International Criminal Court has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant over alleged war crimes connected to the fighting between Israel and Hamas. The decision, handed down on 21 November 2024 by a three-judge Pre-Trial Chamber I of the ICC, marks the first time the court has sought the arrest of a sitting leader of a close Western ally.

The chamber found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility for the war crime of starvation as a method of warfare and for crimes against humanity including murder, persecution, and other inhumane acts. The warrants concern conduct alleged to have occurred from at least 8 October 2023, the day after Hamas launched its attack on Israel.

"The chamber found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility" for the crimes charged, the court stated in announcing the decision.

The same panel also issued an arrest warrant for Mohammed Deif, the commander of Hamas's military wing, the Qassam Brigades. The charges against Deif include war crimes and crimes against humanity, among them murder, hostage-taking, and sexual violence. Israel has maintained that Deif was killed in an airstrike in July 2024, and his death would require the court to terminate proceedings against him if confirmed.

Jurisdictional basis

The ICC's jurisdiction rests on Palestine's membership in the Rome Statute, which it joined in 2015. Israel is not a state party and rejects the court's authority over its nationals. The Netanyahu government has condemned the warrants and has ruled out cooperation with the court.

Judges acted on applications submitted earlier in 2024 by ICC Prosecutor Karim Khan, who had sought the warrants since May. The applications triggered months of legal argument, including challenges to the scope of the court's jurisdiction and requests by the United Kingdom to file observations on the question of jurisdiction over nationals of a non-party state. The chamber ultimately rejected the jurisdictional challenges and proceeded to the merits of the prosecutorial request.

Practical consequences

The 124 member states of the Rome Statute now carry a legal obligation to arrest Netanyahu and Gallant should they travel to their territory. That obligation converts routine diplomacy into legal risk: several European capitals, long-standing partners of Israel, would be bound to detain a visiting Israeli premier and surrender him to The Hague. The warrants also complicate travel to other states that recognize the court's jurisdiction, including signatories of the Rome Statute that have not yet ratified it but may treat the warrants as politically weighty.

The United States, which is not a Rome Statute party, has sharply criticized the prosecutions. Congressional moves to sanction ICC officials in response gained momentum following the prosecutor's initial request, and the Biden administration voiced strong objection to the equivalence the warrants draw between Israeli leaders and Hamas commanders.

For practitioners, the ruling tests the enforcement architecture of the Rome Statute in a case where the suspects control a state outside the court's membership and enjoy the backing of major powers. The court has no police force of its own; execution of the warrants depends entirely on state cooperation. Precedent from the cases of Sudan's Omar al-Bashir and Russia's Vladimir Putin shows that warrants can remain outstanding for years without arrest while still imposing real constraints on a suspect's freedom of movement.

The path ahead

The case now moves toward potential confirmation proceedings, which can only occur if one or more suspects appear before the court, whether through arrest and surrender by a member state or voluntary appearance. Netanyahu and Gallant face no realistic prospect of arrest inside Israel. The warrants nonetheless expose both men to detention in any of the more than 120 states parties and embed their legal status within the Rome Statute system indefinitely, absent a successful jurisdictional challenge or a change in the political landscape surrounding the prosecutions.

Hamas reacted to the warrants with criticism of what it called the court's equation of the victim with the aggressor, while rights groups welcomed the decision as a signal that no party to the conflict stands beyond the reach of international criminal law. Israel's mission to the United Nations dismissed the warrants as a perversion of justice.