of the international criminal court decision The issuance of arrest warrants for Israeli leaders last month appears to have backfired badly. The court now faces an ever-growing list of member states Consideration of immunization Threats of punishment from Israeli officials and the administration of President-elect Donald Trump.
in December 2nd meeting Among the court's 124 member states, the atmosphere was one of a state of emergency. There is a clear sense that the indictment of Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for their actions in the war with Hamas in Gaza has exposed such glaring weaknesses that the Israeli organization itself is at risk. Ta.
The problem that has emerged is that courts require the consent of member states to make arrests, a growing list of European countries. I don't want to do it.
But there are also larger issues plaguing all global institutions. The idea that countries should delegate power to institutions over which they have no control makes some people uncomfortable, especially Mr. Trump.
This idea is at the heart of the very concept of international law and is particularly problematic for Republicans. They feel that the United States is in danger of being drawn into the web of world institutions, from the International Monetary Fund to the World Health Organization, that are moving toward a “world government.”
This fear was further fueled by the ICC, which in the eyes of its critics took sides in the world's most intractable war. The decision to indict Israeli figures is not balanced by comparable charges against Hamas. There is only one Hamas leader, Mohamed Deif. Paid He was likely killed in the October 7 massacre and hostage situation.
As a result, the court is facing a head-on conflict with the incoming Trump administration. During his last term, President Trump sanctions It has filed a similar complaint against the ICC's chief prosecutor and is likely to do so again. And his allies in Congress are planning even more.
Senate Majority Leader John Thune (RS.D.) requested the arrest warrant.outrageous and illegal” promised to pass a House-passed bill seeking broader sanctions against the ICC.
The real hammer to the court will come with a second bill that Sen. Lindsey Graham (RS.C.) has vowed to send to the president's desk. The bill would impose sanctions on countries that do not grant Israeli suspects immunity from arrest.
It is this law that threatens to cripple the court and perhaps eliminate it forever. Mr. Graham made no bones about the threat of sanctions against even key U.S. allies if they did not comply.
“To our allies like Canada, the United Kingdom, Germany and France, if you try to help the ICC, we're going to sanction you,” Graham said.said Fox News.
ICC officials are taking him seriously.
“The court has been threatened with severe economic sanctions by another permanent member of the Security Council as if it were a terrorist organization.''protested ICC President Tomato Akane addressed representatives of member countries.
The heart of the crisis is poorly understood Article 98This is a provision in the law establishing the court that gives member states the power to grant immunity to officials of other countries. Aimed to balance national sovereignty and international justice, member states have an easy way to grant immunity from arrest, which the United States will soon require, by simply filing an Article 98 declaration. means.
France is already took advantage of this loophole declared that it granted immunity to Israelis while adhering to ICC obligations.
Italy, Hungary and Greece have followed suit, and more countries are considering it, including Austria, Australia, Argentina, the Czech Republic and the Netherlands.
The tactic, which could now protect Prime Minister Netanyahu, was honed two decades ago by the United States to protect its own officials from ICC prosecution.
When the ICC opened in 2002, the Bush administration demanded Section 98 exemptions for U.S. personnel and threatened to cut aid to noncompliant countries. Secretary of Defense Donald Rumsfeld also blackmailed Relocate NATO headquarters from Brussels unless Belgium grants war crimes immunity to US military personnel stationed there.
of Nethercut AmendmentFormalizing these threats, dozens of countries acquiesced and granted full protection to the United States.
of The European Union also surrendered grants limited immunity to U.S. military personnel stationed in Europe.
President Trump is almost certain to sign the Graham Act, and U.S. allies know that unless they grant immunity to Israel, they face a withdrawal of military cooperation and possible economic sanctions. European prime ministers are concerned that if European countries do not cooperate, they will accelerate President Trump's move to separate the United States from NATO.
Some states, particularly socialist-ruled Spain, reject the idea of exemptions altogether. butGermanyand England Two of the ICC's major funders are adamant. Countries have imitated France and issued cautious declarations of compliance with international obligations, but have declined to say whether they will follow Paris and grant Israel exemptions within the law.
The concern in The Hague is that if a number of states bow to President Trump's pressure and grant Israel a waiver, it could lead to contagion with other infectious diseases.
Some African countries hosting Russian Wagner mercenaries may want to grant Article 98 immunity to President Vladimir Putin, who was indicted by a court last year for crimes against humanity. mongolia It has already granted President Putin immunity for recent state visits without having to issue an Article 98 declaration or face punishment from the courts.
The nightmare for judges is that each new indictment results in a wave of immunity from the suspect's allies, making it impossible for the court to enforce the verdict.
Adding fuel to the fire is the perception of bias in the ICC's response to the Gaza conflict. Prime Minister Netanyahu and Prime Minister Gallant face numerous charges, including attacks on civilians, starvation and deprivation of essential services, but Hamas has largely escaped responsibility.
Initially, three Hamas leaders were targeted at the court, but now two are now targeted at the court. confirmed dead And despite strenuous efforts, the court has not been able to obtain proof that the third person, Deif, is alive.
A more cautious panel of judges would have asked lead prosecutor Karim Khan to find new Hamas suspects rather than pursue an Israel-focused prosecution.
This perceived imbalance has reinforced Republican cries that the ICC is being used by a global leftist movement that targets Western allies and turns a blind eye to attacks by adversaries.
Indeed, the court has acted erratically, pouring resources into the Gaza case while ignoring other wars. For example: Investigate the Taliban in AfghanistanHe has never been indicted since 2003.
Critics can also point out the powerlessness of the courts. After 22 years of establishment, 3 billion dollars spentthere were only six convictions for war crimes, a pitiful record for a court that claims to be the pinnacle of human rights law.
Some believe the court has accepted its fate. It is noteworthy that this week's annual meeting was passed without the support of member state leaders at the very moment when we most wanted them to be involved.
If these countries capitulate to granting immunity, now to Israel and later to other countries, they will effectively withdraw from the court. It continues to live, but sidelined, partly a victim of external forces, but also partly the architect of its own demise.
Dan Perry (danperry.substack.com) is a former editor-in-chief of the Associated Press in Europe, Africa and the Middle East and a former president of the Foreign Press Association in Jerusalem. Chris Stephen is the author of The Future of War Crimes Justice, published by Melville House (London and New York) in 2024, and Judgment Day: The Trial of Slobodan Milosevic (Atlantic Books, New York, 2005) .
