ICC Arrest Warrants Against Netanyahu and Gallant: A Legal Analysis

On 21 November 2024, the International Criminal Court (ICC) issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. The warrants, relating to alleged war crimes and crimes against humanity in Gaza, immediately drew sharp international reaction — both in support and in opposition.

The following analysis draws on a public discussion hosted on the Stealth Medical X Space (@StealthMedical1), in which this correspondent posed questions to guest speaker Mr Jonathan Hessen on the legal dimensions of the warrants.

Both the United States and Hungary have formally opposed the ICC arrest warrants, contending that they constitute an infringement on Israeli sovereignty and are politically motivated. Their opposition has been accompanied by concrete action: the United States imposed sanctions on the ICC, while Hungary withdrew its membership from the Court in April 2025.

This opposition has, however, prompted a significant counter-argument from legal scholars and commentators. Critics have raised the concern of selective justice — noting that neither the United States nor Hungary raised comparable objections when the ICC issued arrest warrants against the leaders of other sovereign states in previous years. The question, therefore, is what distinguishes the present case from those precedents.

Mr Jonathan Hessen opened his response by noting that neither the United States nor Israel is a signatory to the Rome Statute — the founding treaty of the ICC. On that basis, he argued that the issuance of an arrest warrant against an Israeli public official constitutes a breach of the Court's statutory mandate, and that the ICC's assertion of jurisdiction may not accord with the doctrine and spirit of international law.

Mr Hessen further submitted that Israel possesses a competent and independent judiciary, and that domestic court martial proceedings have been, and continue to be, conducted in respect of allegations of the kind now before the ICC. He cited instances in which Israeli military personnel have been prosecuted domestically for violations of the rules of engagement as evidence of Israel's capacity and willingness to address such matters through its own legal institutions.

In response, this correspondent drew attention to the established jurisdictional framework of the ICC. The Court has jurisdiction over four categories of the most serious crimes of international concern: genocide, crimes against humanity, war crimes, and the crime of aggression. Critically, the ICC exercises jurisdiction when a state is unable or unwilling to prosecute such crimes domestically, or when a situation is referred to the Court by the United Nations Security Council.

The ICC's jurisdiction is temporal, personal, and subject-matter based. Importantly, the Court may exercise jurisdiction over a public official of a non-member state where the alleged offence was committed in the territory of a member state. Palestine acceded to the Rome Statute and became a member state of the ICC — a point that directly bears on the Court's competence in this matter.

Mr Hessen had also argued that Palestine's acceptance as a signatory to the Rome Statute may itself have been a political act, given that Palestine is not a full member state of the United Nations and lacks internationally recognised borders. This is a point of legal contention, though it is worth noting that membership of the ICC is governed by the Rome Statute, not by United Nations membership. By virtue of UN General Assembly Resolution 67/19 of 29 November 2012, Palestine was accorded non-member observer state status at the United Nations — a status that enabled it to accede to the Rome Statute and assume full membership of the ICC.

The most consequential question in this debate is not whether Israel has an independent judiciary — the evidence strongly suggests that it does — but whether Israel has demonstrated a genuine willingness to initiate domestic proceedings in respect of the specific allegations now before the ICC against its Prime Minister and former Defence Minister.

On this point, the record is instructive. Rather than initiating domestic proceedings, Israel has consistently challenged the legitimacy of the ICC arrest warrants and objected to the Court's jurisdiction. Numerous substantiated reports indicate no domestic prosecution has been commenced in relation to these allegations. Under the Rome Statute's complementarity principle, it is precisely this combination — capability without demonstrated willingness — that may justify the ICC's exercise of jurisdiction.

Underlying much of this legal debate is a deeper political question: why has Palestine not yet been recognised by the United Nations as a sovereign state with defined borders? The answer lies in the composition of the UN Security Council. While more than 139 countries have recognised the State of Palestine, the majority of permanent Security Council members have not done so.

That position has, however, been shifting. In the context of the ongoing humanitarian crisis in Gaza, France, the United Kingdom, Canada, and several other European nations have indicated their intention to formally recognise the State of Palestine at the United Nations General Assembly session scheduled for September 2025.

The legal arguments advanced by Mr Hessen are not without merit. The absence of both Israel and the United States from the Rome Statute raises genuine questions about the scope of the ICC's jurisdiction and the consistency of its application. The concern of selective justice, however, remains a legitimate and unresolved challenge to the credibility of the international legal order.

What is clear is that the ICC's exercise of jurisdiction in this matter rests on a defensible legal foundation: the alleged offences occurred in the territory of a member state, and there is no evidence of a genuine domestic prosecution of the specific allegations in question. Whether that foundation will ultimately withstand political and legal challenge remains to be seen.