The application and credibility of international law is currently being called into question as governments refuse to execute arrest warrants in some of the most high-profile cases to come before the International Criminal Court.
In the past 18 months, the Hague-based court has issued arrest warrants for Russian President Vladimir Putin as well as Israeli Prime Minister Benjamin Netanyahu, his former Defense Minister Yoav Gallant, and a senior Hamas official.
Netanyahu is the first Western-allied leader to be charged with war crimes and crimes against humanity by the court. Israel has filed appeals and asked the court to suspend the warrants. Meanwhile, several powers have chosen not to execute the warrants, while others have openly rejected them.
The French response has perhaps been the most damaging to the court. Paris had strongly supported the Putin warrant and reaffirmed its “longstanding commitment to international justice” after the Netanyahu warrant was issued. But days later, the French foreign ministry reversed its position, suggesting that because Israel was not a member of the court, its prime minister might be immune from arrest.
Critics say the responses suggest two sets of rules: one for the West’s traditional allies, and another for its enemies.
The ICC’s founding treaty requires all 124 signatory countries to arrest Netanyahu and Gallant, according to James Joseph, editor-in-chief of Jurist News.
“It seems increasingly uncertain whether states will live up to this obligation,” he told CNN. “States cannot claim success in international criminal justice if they do not commit to ensuring the rights of all actors involved.”
The Netanyahu case is just the latest blow to the court’s authority. In September, Putin visited Mongolia without facing any consequences. Despite Mongolia being a signatory to the Rome Statute – the treaty that established the court in 2002 – the country welcomed the Russian leader with open arms.
Putin’s trip to Mongolia was his first to an ICC member state since an arrest warrant was issued for him in March 2023 for his alleged role in the war crime of illegally deporting Ukrainian children.
Lack of consensus
The warrants targeting Netanyahu and Gallant have drawn mixed reactions from Western states, highlighting a lack of consensus on how to respond to high-profile accusations against allies.
Former EU foreign policy chief Josep Borrell said they were “binding” and should be implemented. Ireland, Canada and the Netherlands agreed. Germany stalled, saying it had “a unique relationship and a great responsibility toward Israel” and would consider further steps only when a visit by Netanyahu to Germany was possible.
Meanwhile, Argentina and Hungary, both members of the court, made clear that Netanyahu was welcome to visit their countries. Hungarian Prime Minister Viktor Orban called the ICC’s decision “cynical, brazen and totally unacceptable” and guaranteed Netanyahu freedom and security if he came to Hungary.
The United States, which has never joined the court and has agreements with about 100 countries to prevent the arrest of Americans indicted by it, condemned the warrants targeting Israeli leaders.
The Biden administration’s criticism of the warrants targeting Israel was as strong as its support for the warrant against Putin. After the announcement, President Joe Biden said it “strongly underscored… that he clearly committed war crimes.”
In France’s updated position, the State Department said in a statement: “France intends to continue working closely with Prime Minister Netanyahu and other Israeli authorities to achieve peace and security for all in the Middle East.”
France’s sudden change of heart was condemned by human rights groups. Amnesty International said it raised “serious concerns” and ran counter to the government’s obligations as a member of the ICC.
In changing its position, France appears to have retreated behind Article 98 of the Rome Statute, which states that a state may not “act inconsistently with its obligations under international law with respect to the diplomatic immunity of a person.”
Mongolia has made a similar argument – as Russia’s head of state, Putin enjoys absolute immunity from ICC proceedings unless Russia waives it.
The court rejected that claim, saying another article removes all immunities. A panel of judges reported Mongolia to the ICC’s Assembly of States Parties, arguing that court members “are required to arrest and surrender persons subject to ICC warrants, regardless of their official position or nationality.” Any other interpretation “would undermine the Rome Statute’s objective of ending impunity for those who threaten global peace and security,” the panel said at the time.
Court spokesman Fadi El Abdallah said it would continue its mission to ensure accountability and justice for all, despite challenges on the political front.