Why An International Arrest Warrant For Netanyahu Is Legal Trash

The International Criminal Court’s arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant on charges of war crimes in Gaza demonstrate, once again, the absurdity of that institution. The warrants discredit the ICC and complicate the prospects for peace in Gaza. But they also allow President-elect Donald Trump to strike a blow for American national sovereignty.

The ICC has ordered the arrest of Netanyahu and Gallant for allegedly violating the laws of war, principally, in the ICC prosecutor’s words, by executing a “plan to use starvation as a method of war and other acts of violence against the Gazan civilian population.”

The ICC has finally achieved what the war could not: full agreement between Netanyahu and the Biden administration, which promptly denounced the ICC’s decision. So did Rep. Michael Waltz, R-Fla., whom President-elect Trump has designated as his national security adviser. The ICC also created an obstacle to peace negotiations: Netanyahu declared that Israel will now seek “total victory” in Gaza.

The ICC is a product of gauzy, utopian 1990s thinking. According to the then-conventional wisdom, national sovereignty was receding before the irresistible forces of multilateralism and globalization. Nations could not be trusted to enforce the laws of war against themselves, so a supranational institution would have to provide a judge, jury, and executioner all wrapped up in one. But even though the Clinton administration participated in the drafting that led to the Rome Statute — the treaty that created the ICC — the United States did not ratify it and is not a party to it. The world’s other leading military powers — China, Russia, India, and Israel — also refused to join. 

True, some 124 states are parties to the treaty, including many of our Western European allies. Membership in the ICC commits states to carry out the court’s arrest warrants if a wanted suspect sets foot on their territory. If Netanyahu visits a state party like, say, Canada, the Canadian government would be bound by treaty to arrest him. But several state parties, including Germany, France, Argentina, and Hungary, have already said or implied they would not arrest Netanyahu should he visit them. The United States should assist Israel in rallying opposition to the arrest warrants among other ICC members.

Similar ICC mandates have foundered on the rocks of international reality. The ICC issued an arrest warrant for Russian President Vladimir Putin in March 2023 for war crimes committed during Russia’s invasion of Ukraine. Yet Putin has traveled outside Russia since to states like China and Saudi Arabia (not parties to the ICC), the United Arab Emirates (which has signed but not ratified the treaty), and, in September, Mongolia (a party to the ICC).

Earlier, in 2009 and 2010, the ICC issued warrants for another head of state, Omar Hassan al-Bashir of Sudan. South Africa (an ICC signatory) did not arrest al-Bashir when he visited that country in 2015 to attend an African Union summit. 

For most of its existence, the ICC concentrated on easy targets — mostly weak African nations. When that caused blowback, it sought bigger game, such as Russia, the U.S., and now Israel. But whichever route it takes, the institution is fatally flawed conceptually. 

For thousands of years, countries themselves defined and enforced the law of nations. They steadily sought to build up the principle, from the days of the ancient Greeks through World War II, that nations should seek to spare civilians (or selected categories of them) from the horrors of war. They enforced this norm by retaliating against nations that exceeded widely held notions of humane conduct in war. 

The Rome Statute replaced this nation-based system with an impractical, and even dangerous, utopian vision. It assumed that unelected international officials, assisted by groups of self-appointed experts and human rights activists, not nations, would define war crimes. It declared that a fanciful band of international judges and prosecutors, without any police or armed forces at their command, would enforce and adjudicate the cases. 

Not only does this system violate basic principles of due process — there are no juries, no true separation of judges and prosecutors, and no control by elected officials — but it threatens dangerous unintended consequences. Nations under the ICC’s spell might refuse to undertake the tough choices necessary to wage war, especially against the types of terrorists the United States and Israel have encountered in al Qaeda, Hamas, and Hezbollah, and perhaps against our current rivals, China and Russia. Western nations would handicap themselves even as challenges to our postwar security arise.

Indeed, some EU countries will put their own national sovereignty and their elected leaders at risk if they pledge to execute the ICC warrants. Several EU states sell arms to Israel; Germany alone supplies about one-third of Israel’s arms. According to a UN report last May from a group of international law experts, countries that transfer weaponry to Israel can be considered accomplices in its alleged crimes. Thus if Germany were to implement the ICC warrants but continue to provide weapons to Israel, it would be setting up its own government leaders to be targets for ICC prosecution. 

Moreover, the United States, which supplies most of Israel’s foreign-bought weaponry, would also be in the ICC prosecutor’s crosshairs. Even though the U.S. is not a party to the ICC, a jurisdictional rule in the Rome Statute purports to authorize a prosecution against a nonparty state that allegedly commits war crimes on the soil of a party. Because the ICC considers “Palestine” a state, and because Israel uses U.S. arms in Gaza — deemed to be part of “Palestine” — U.S. leaders like President Biden could also face ICC warrants.

In short, the ICC’s actions put the leaders of several countries besides Israel — including our own — at serious risk and eviscerate the principle of national sovereignty. Can an unelected prosecutor really be allowed to wreak havoc on elected governments throughout the West?

What can the incoming Trump administration do? It could impose severe sanctions on the ICC judges and its prosecutor, Karim Ahmad Khan, who engineered this debacle, by blocking their ability to transact business through our banking system, for example. It could threaten severe sanctions against any nation that arrested Netanyahu or Gallant pursuant to the ICC warrants. It could also display its contempt for the ICC by inviting the Israeli premier to the White House and Congress. 

Furthermore, the Trump administration should take action against nations that are funding and supporting the ICC so generously. Some of the ICC’s largest financial benefactors, including Japan and the European Union nations, are also dependent on the United States for their security. Yet while asking Washington, D.C., to protect them, they finance a global institution that hamstrings our ability to do so. If Tokyo, for example, wants the United States to lead a new alliance to contain China, Trump can demand that Japan eliminate its subsidy for an international institution that seeks to undermine the American national sovereignty he was elected to restore.

Americans voted for Trump to restore national sovereignty, especially by securing the border and controlling immigration. Trump can demonstrate his commitment to our sovereignty by attacking an institution that poses a direct threat to it: the ICC.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and Senior Research Fellow at the Civitas Institute, University of Texas at Austin; Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute. Robert Delahunty is a Fellow of the Claremont Institute’s Center for the American Way of Life in Washington, D.C.