For the best experience, open
on your mobile browser.

Symbolic or Substantial?

Rising Legal and Diplomatic Challenges for Israel Amid Gaza Conflict
symbolic or substantial

Israeli Prime Minister Benjamin Netanyahu and his government are facing mounting pressure and isolation. Netanyahu's ongoing military campaign in the Gaza Strip has brought him and his administration under the scrutiny of two major international courts, the International Criminal Court (ICC) and the International Court of Justice (ICJ).


This week, the situation took another turn as Spain, Ireland, and Norway announced their decision to join 140 other United Nations member states in formally recognizing a Palestinian state, despite the lack of a tangible, viable Palestinian state on the ground. What does it mean and could it be a step forward for peace in West Asia?


ICC Seeks Arrest Warrants:


On Monday, ICC chief prosecutor Karim Khan announced that arrest warrants were requested for five individuals involved in the Israel-Hamas conflict. The International Criminal Court (ICC) announced last Monday that it is seeking arrest warrants for leaders of both Hamas and Israel for alleged war crimes and crimes against humanity related to the Gaza conflict.


ICC Prosecutor stated that there are reasonable grounds to believe that Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif), and Ismail Haniyeh bear criminal responsibility for numerous crimes, including murder, extermination, and hostage-taking since the conflict began following Hamas-led attacks on October 7, 2023.


Additionally, Khan indicated that Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant are also suspected of committing crimes against humanity, such as using starvation of civilians as a method of warfare and targeting civilian populations.


Although not a UN organisation, the ICC has a cooperation agreement with the UN, allowing the UN Security Council to refer situations to the ICC when necessary. Khan emphasized the severe impact of Israel’s siege on Gaza, including deprivation of essential supplies and attacks on aid workers. He stressed that actions causing civilian suffering violate international law, despite Israel's right to self-defence.


ICJ Orders to Stop Military Operations

In another holdup to Israel, the International Court of Justice (ICJ) on Friday ordered Israel to stop its military operations in Rafah, southern Gaza, and to open the Rafah border crossing with Egypt for large-scale humanitarian aid. The ICJ also demanded the release of all Israeli hostages held in Gaza. This ruling, following a submission by South Africa accusing Israel of “genocidal” actions in Gaza, is part of a larger case against Israel's actions in the region. Despite the legally binding nature of ICJ rulings, enforcement is weak. Israel has denied the allegations and stated it would ignore the order, continuing airstrikes in Rafah shortly after the decision.

Recognition of Palestinian State

On Wednesday, Ireland, Norway, and Spain announced their decision to formally recognize a Palestinian state starting May 28. Both Spain and Ireland clarified that this move is not intended to oppose Israel or support Hamas, but rather to advocate for peace.

These three announcements last week mark pivotal moments in the conflict's trajectory. The ICC's pursuit of justice against both Hamas and Israeli leaders, ICJ on ordering Israel to stop its military operations in Rafah highlights the international community's increasing scrutiny of actions taken by both sides.

This could lead to heightened tensions and more complex diplomatic interactions. Meanwhile, the recognition of a Palestinian state by Ireland, Norway, and Spain signals a shift in international support, aiming to foster peace and stability in the region.

The ICC, established in 2002 under the Rome Statute, prosecutes individuals for war crimes, genocide, and crimes against humanity. Although many democracies, including the UK, are ICC members, the U.S. and Israel are not, with the U.S. arguing against the court’s jurisdiction over non-member countries' citizens.

However, the ICC's recognition of Palestine as a member in 2015 allows it to investigate and prosecute crimes committed on Palestinian territory. The ICC's treatment of Palestine as a state, due to its observer status at the UN, allows it to sign the Rome Statute and enables the court's jurisdiction over the conflict. This development highlights the ongoing and complex nature of the Israel-Gaza conflict, with significant legal and diplomatic repercussions expected in the near future.

Strong Reactions

As expected, it has sparked significant outrage in Israel due to its stringent application of international law to all parties involved. Israeli Prime Minister Benjamin Netanyahu has condemned the potential ICC arrest warrants, labelling them a "moral outrage" and accusing ICC Prosecutor Karim Khan of antisemitism. Netanyahu defended Israel's actions as part of a just war against Hamas. U.S. President Joe Biden and Hamas also criticized the ICC's actions, albeit from opposing viewpoints.

However, the human rights groups have praised the ICC for applying the law equally to all parties involved. If the ICC judges approve Prosecutor Khan's requested arrest warrants, Israeli officials and Hamas leaders could face travel restrictions, limiting their movement to avoid arrest and extradition to The Hague. These warrants would apply in the court’s 124 member nations, mostly in Europe, making travel risky for the accused.

If arrest warrants are approved, Israel may become more isolated internationally. Historically, Israel has resisted international pressure. The ICC relies on member states to arrest and transfer suspects since it lacks its own police force. For instance, the ICC quickly approved arrest warrants for Russian President Vladimir Putin over war crimes in Ukraine, though enforcement remains challenging.

The ICC, established in 2002, prosecutes genocide, crimes against humanity, and war crimes that traditional criminal systems cannot handle. It relies on its member countries (excluding Israel and the U.S.) to enforce its mandates. Despite issuing 46 arrest warrants and detaining 21 individuals, many suspects evade arrest, like Sudan's former President Omar al-Bashir, who has travelled to ICC member states without being detained.

Recognition of Palestinian State: On May 28, Ireland, Norway, and Spain will formally recognize a Palestinian state. Spain and Ireland emphasized that this decision supports peace rather than opposing Israel or favouring Hamas. Norway was the first to announce its decision on Wednesday, with Prime Minister Jonas Gahr Støre stating that the move supports moderate forces and the two-state solution. Ireland and Spain followed, with Irish Foreign Minister Micheál Martin and Prime Minister Simon Harris expressing support for equal rights for Palestinians and Israelis. Spanish Prime Minister Pedro Sanchez reiterated that the decision aims to foster peace and coexistence.

Israeli Foreign Minister Israel Katz ordered the immediate recall of Israeli ambassadors from the three countries and warned of serious consequences. Katz also announced that the ambassadors of Ireland, Norway, and Spain in Israel would be summoned for reprimand talks, where they will be shown a video of the abduction of female Israeli soldiers on October 7. Netanyahu condemned the recognitions as a "reward for terrorism," arguing they will not bring peace.

Challenges and Implications of ICC Arrest Warrants

The recent actions by the International Criminal Court (ICC) to seek arrest warrants for leaders of both Hamas and Israel highlight significant challenges in enforcing international law, particularly when key nations do not recognize the court's authority.

Enforcement Limitations: The ICC lacks its own enforcement mechanisms and relies on member states to arrest and transfer suspects. This fundamental limitation means that without the cooperation of these states, the ICC's warrants may remain largely symbolic. The case of Russian President Vladimir Putin, who continues to enjoy relative freedom despite ICC warrants, highlights this issue. He faces restricted travel but remains largely unaffected within Russia and other non-ICC member states.

Non-Membership of Key Nations: Israel, and the United States, have not ratified or accepted the ICC; however majority of European countries have signed, rectified, and put the law into force. So, it will be of great difficulty for the Israeli or Hamas-accused leaders to travel to European countries.

This non-membership severely undermines the court's ability to enforce its decisions against individuals from these countries. Israeli leaders are unlikely to face arrest if they remain within Israel or travel to non-ICC member states. Similarly, Hamas leaders will face limited consequences if they avoid ICC member nations.

Potential Outcomes

Travel restrictionsIsraeli and Hamas leaders targeted by the ICC warrants will likely face significant travel restrictions. They will need to avoid ICC member countries to prevent arrest and extradition to The Hague. This serves as a form of punishment and international isolation, albeit less severe than imprisonment.

Diplomatic Tensions: The issuance of these warrants will likely exacerbate diplomatic tensions. Israel’s strong reaction, including recalling ambassadors from countries recognizing a Palestinian state, suggests a heightened defensive posture on the issue.

Symbolic Justice: For human rights groups and victims, the ICC's actions represent a symbolic step toward accountability. Even without direct enforcement, the warrants signal international condemnation and a commitment to justice.

Increased Isolation: Israel may face increased international isolation as the ICC's actions and the recognition of a Palestinian state by more countries gather momentum. This could lead to more diplomatic and economic pressures on Israel.

Continued Conflict Dynamics: On the ground, the conflict dynamics are unlikely to change. Both sides remain entrenched in their positions, and the lack of enforceable consequences for leaders perpetuates the status quo.

Precedence For Future Cases: The ICC’s pursuit of high-profile cases like these sets a precedent for future international legal actions. It reinforces the principle that leaders are accountable for their actions, even if practical enforcement is challenging.

In conclusion, Prime Minister Benjamin Netanyahu and his government find themselves increasingly lonely on the global stage. The ongoing conflict in the Gaza Strip has not only intensified international scrutiny but also placed Israel under the legal and diplomatic spotlight of both the ICC and ICJ and several other global platforms. The recent decision by Spain, Ireland, and Norway to recognize a Palestinian state, aligning with 140 other UN member states, highlights the growing international demand for a resolution, despite the absence of a practical and viable Palestinian state. This development signals a significant shift in global public opinion and presents a formidable challenge for Netanyahu's administration moving forward.

It also highlights important principles of international law, its lack of enforcement power and the non-membership of key nations like Israel, and the U.S that limit its practical impact. The primary outcome of these international courts will likely be symbolic, imposing travel restrictions and adding to the diplomatic and international pressure on the accused leaders. Without broader international cooperation and recognition, the ICC and ICJ efforts will remain an important but imperfect tool in the pursuit of global justice.