Why Europeans should support the International Criminal Court over the Gaza war

The chief prosecutor of the International Criminal Court (ICC) announced on 20 May that he is seeking arrest warrants against the leaders of both Hamas and Israel for war crimes and crimes against humanity. This has huge implications for the war in Gaza, the wider Israeli-Palestinian conflict, and for international justice. The move holds out the prospect of individual accountability for actions in a conflict that has seen massive civilian suffering and the apparent commission of multiple crimes. It is also the first time that an ICC prosecutor has applied for a warrant against the political leader of a Western ally.

How Europeans should respond

The warrant application adds to the list of evidence suggesting both Hamas and Israel have committed violations of international law. This should lead European and other countries that support Israel to redouble their scrutiny to make sure they are not supporting such crimes and doing everything possible to ensure that Israel allows humanitarian aid to reach Gaza in sufficient quantities.

European countries should recognise that attempts to denigrate the work of the ICC – or to influence the pre-trial chamber’s decision on the warrants – will undermine their claim of supporting the international rule of law, especially after they strongly supported arrest warrants against Russian president Vladimir Putin over Ukraine. It would also be misguided for European countries to attack the court for seeking arrest warrants against representatives of a democratic state, as some leaders have done, as this would suggest to the rest of the world that liberal democracies regard themselves as above the law.

The impending warrants could also contribute to ending the conflict. Despite an initial “rally round the flag” effect, warrants could over time marginalise Netanyahu and encourage the election of a new – and less hardline – Israeli government. Alternatively, Article 16 of the ICC’s statute allows the United Nations Security Council to suspend investigations or prosecutions for 12 months (on a renewable basis). Members of the security council could use a suspension to induce both Israel and Hamas to take meaningful steps towards ending the conflict, including agreeing to and abiding by a ceasefire in Gaza by a clear deadline. The prospect of renewing the warrants could act as a powerful guarantor to hold the parties to the terms of a future deal. But any effort to invoke Article 16 must be done in exchange for a genuine agreement to a sustainable end to the fighting and a commitment to a viable post-conflict track to stabilise Gaza – not for the purpose of shielding those responsible for international crimes from accountability.

The court’s next steps

The ICC’s pre-trial chamber will issue warrants if it is satisfied that there are reasonable grounds to believe that the individuals involved committed these crimes. A decision may take months, but approval is likely given the number of alleged crimes, the detail of the application, and the fact that an authoritative external expert body has unanimously supported the prosecutor’s assessment. If the arrest warrants are confirmed, Israeli prime minister Binyamin Netanyahu and defence minister Yoav Gallant will face arrest if they visit countries that are members of the ICC, including most of Europe. Other charges or applications for further warrants could follow.