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The International Criminal Court issued an arrest warrant against Vladimir Putin for "unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation" which would be a violation of the Rome Statute.

The war crimes committed by the Russian side in the Russian-Ukrainian war are often compared to actions in the Israeli-Gaza war in 2023.

Could Netanyahu also be issued such a warrant from the ICC for Israeli actions in Gaza? Is the ICC investigating crimes that may be happening in the Israeli-Gaza war, and are there indications that such an arrest warrant is a possibility?

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    "let me try your phrasing then" This was just a suggestion. You need to do actually more to ask a good question. For example, the two cases aren't equal. A better explanation why you see equivalence here would be in order. And much more context or discussion where exactly you see the need to issue such a warrant on Netanyahu. It's on you to make the case for this question. I tried to salvage it, but I feel like it still lacks enough information. Basically: tell me more why you think that Netanyahu must be persecuted including details. Then we can talk about something. Feb 19 at 13:54
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    @NoDataDumpNoContribution Why are the two cases not equal? War crimes are war crimes. Feb 21 at 16:05
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    @AhmedTawfik "Why are the two cases not equal? War crimes are war crimes.""War crimes are war crimes" is a tautology. That two different cases are different is also kind of a tautology. But a question based on an analogy must make some effort to show that the analogy might apply and there wasn't enough effort for that here. Which war crimes exactly and how is Netanyahu related to them? These aren't simple, self-evident statements. Basically argue for that case and bring some sources (and the more clear and independent the sources are the better). A better motivation would improve the question. Feb 21 at 16:30
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    Whether the ICC does prosecute them or not is a matter of political will. As another answer below mentions, supporters of Palestine are not hopeful.
    – Ben Cohen
    Feb 21 at 20:46
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    @NoDataDumpNoContribution "A war crime is a war crime" is not wrong. If you try to use the fact that he "did not intentionally kill so many women and children" to prove that he did not commit a crime by killing civilians, then you are saying that "war crimes are not war crimes." So he has no problem rebutting you with "a war crime is a war crime." The reason why you refute him from the perspective of wordplay is just because you have no suitable reason to defend yourself.
    – yamakaze
    Feb 22 at 2:11

5 Answers 5

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While Netanyahu may have some political responsibility for all warcrimes committed by the Israeli Defense Forces, the same does not hold for criminal responsibility. To establish criminal responsibility, there would need to be evidence that Netanyahu ordered the war crime to be committed, or, at the very least, that war crime was committed because soldiers followed procedures set by Netanyahu.

In the case of Putin, this is why he is being charged for abducting children, but not eg the Bucha massacre. The Russian government made plenty of televised statements confirming that the systematic abduction of Ukranian children was their official policy. For the more brutal war crimes however there is a lack of clear evidence establishing that they were ordered from the very top.

Back to Gaza, there certainly seem to be incidents where it seems very plausible that a war crime was committed by the IDF. An example coming to my mind is the bombing of the ambulance send to rescue Hind Rajab (BBC). However, without access to internal communication and documents it is going to be near impossible to tie the act to anyone prominent enough to merit prosecution by the ICC.

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    Netanyahu is the head of the government and the war cabinet. Ultimately he is responsible for the war crimes his army commits.
    – sfxedit
    Feb 20 at 21:57
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    As this answer already addresses, @sfxedit, there is a difference between being politically responsible or even morally responsible for the actions of the IDF on one hand, and being criminally responsible for particular war crimes the IDF may have committed on the other. Netanyahu might be criminally responsible for one or more war crimes committed by the IDF, but that does not follow just from him being head of state. Feb 20 at 22:26
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    @sfxedit that's incorrect. The country is only responsible for war crimes if it refuses to prosecute them. It's assumed that there are always some bad actors in every military, just as there are in every walk of life. A state only becomes culpable if it appears to enable those bad actors (even if that means looking the other way). If Israel investigates and prosecutes (or declines to prosecute for solid legal reasons) accusations of war crimes, then the state is not culpable. Feb 21 at 23:36
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    @RadicallyReasonable We aren't talking about select war crimes but a state-planned Genocide, which the Netanyahu administration and the IDF obviously deny. In such cases, Netanyahu and the IDF leadership are more culpable as the Genocidal campaign can be planned in such a way that lower ranking IDF officials are unaware of it in their military campaigns - for e.g. a regiment in charge of a specific area or campaign can be told that they have the authorisation to exceed collateral kills by 20% which might not seem excessive to them but adds up when all the IDF regiment also have same orders.
    – sfxedit
    Feb 22 at 7:19
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    @RadicallyReasonable Any government is only culpable for its bad actors if it enables them Yes, that is correct. And how many court-martial enquiries are under way in Israel? Just because Netanyahu's administration claim that no genocide or no war crimes is happening, doesn't mean that he automatically escapes culpability. He and his administration are the bad actors here. A state-sponsored genocide means the leadership of the state is behind such policies, and it will be thus culpable of it.
    – sfxedit
    Feb 22 at 15:36
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The ICC has been investigating potential war crimes in Palestine since March 2021, though the investigation covers everything from the 2014 Gaza War onwards and includes Hamas' actions as well as Israel's. The ICC's chief prosecutor, Karim Ahmad Khan, has stated that both the October 7th attack by Hamas, and Israel's subsequent military response, fall within the jurisdiction of the investigation.

So yes, the ICC is investigating any potential war crimes that may occur (or have already occurred) during the present conflict. This could hypothetically lead to arrest warrants being issued for Netanyahu and/or other members of the Israeli cabinet, but whether this will actually happen appears, at this time, to be a matter of speculation. I'm not aware of any statements from the ICC in either direction.

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    Could arrest warrants be issued against Hamas members? I've never heard of it... but this is perhaps because these never travel beyond the Middle East (though they do go to Russia sometimes - probably through Turkey.) Feb 19 at 17:03
  • Is there any recent statement from Karim Ahmad Khan about ongoing investigations? Maybe something they are especially interested in? And how do they gather their evidence? This isn't really necessary for the question, but would nicely complete the context. Feb 19 at 20:56
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One issue seem to be that ICC is more or less "pay to prosecute", i.e. countries can make contributions to individual prosecution projects/targets, and Israel/Gaza have not had much priority in that respect, thus far:

[...] the Office of the Prosecutor (OTP) assigned no funds to the Palestine situation in 2022 (the budget was finalised on 16 August 2021). In 2023, Khan allocated the lowest budget (944.1 thousands of euros) among all active investigations to the Palestine investigation (one fifth of the budget of 4,499.8 thousands of euros to Ukraine for which the Prosecutor had called upon states to provide voluntary contributions; (almost) one fourth of the budget of 3.506,3 thousands of euros to Sudan; and half of the budget of 1,917.8 thousands of euros to the Philippines ). The way in which the Prosecutor had approached the Palestine investigation appears to be in sharp contrast to the Ukraine situation. After the beginning of the Russian full-scale invasion, Khan undertook several visits to Ukraine, attended press conferences, opened the Court’s biggest field office, deployed 42 investigators, opened an online portal to collect evidence, and raised unprecedented amounts of funding from various states.

Anyhow, based on the pattern of Khan's visits, pro-Palestinian groups do not expect any ICC prosecutions against Israelis:

In November, the Prosecutor met Israeli victims of the 7th October attacks and their lawyers in The Hague. His subsequent visit to Israel at the end of November came ‘at the request and invitation’ of the Israeli victims.

[...] Prosecutor Khan turned down calls from Palestinian victims and their legal representatives, who had repeatedly requested meetings. For this reason, Palestinian human rights groups took the unprecedented step not to meet the Prosecutor in Ramallah in early December 2023.

The latter mutual snubbing has also been covered by Reuters.

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    BTW, Israel (like Russia and Ukraine) is not a member of the ICC. So, Khan's visit has been some kind of special mandate, I guess. Before Oct 7, both the UK and the US firmly rejected that ICC had any jurisdiction in Israel or Palestine. Feb 19 at 19:11
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    These numbers in your quote are hard to parse, essentially it is 1 million Euros for Palestine, 4,5 million Euros for Ukraine, 3,5 million for Sudan and 2 million Euros for the Philippines. Palestine is indeed the smallest but this is still enough to pay a couple of people to look into this for a year.
    – quarague
    Feb 20 at 10:38
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    @Dolphin613Motorboat The way ICC got pulled into Ukraine-Russia war is that a - large - number of ICC-member states petitioned to have it involved. So easy enough for this to happen here as well, should it be warranted. Arno's answer is pretty solid though - you'd first need some real smoking gun evidence tying a particular war crime to an instruction/policy from Bibi pertaining to said war crime. It would seem a lot more constructive to be more aggressive in establishing whether or not the IDF has been committing war crimes first, before trying to pin them on Bibi. Feb 21 at 17:11
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In theory, yes. In practice ICC would have to reach an extremely high burden of proof. Even if it had full evidence of crimes against humanity (which obviously it won't... if anything Israel's haters will hang on some technicality rather than actual evidence which can be used in a real court).

ICC is established as the court of last resort. So despite what some on this site may wish to believe, if a country has a robust legal system which is independent of the government, the ICC has no jurisdiction by design. Obviously, it's not enough to simply claim to have such a system. Otherwise, everyone accused by the ICC would make such claims. But as part of any court case, a court has to have reasons for claiming jurisdiction and has to be able to state those reason.

Here's Article 17 of the Rome Statute, (the statute which gives ICC its authority):

Article 17

Issues of admissibility

  1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court

Given that the evidence for Israel's Supreme Court's independence is very clear. There was, after all, an extremely visible and unequivocal civil unrest in Israel, with significant part of the population taking part in the protests, specifically because the government wished to reduced the court's independence, it would be incredibly difficult for ICC to justify claiming that Israel's court is not independent. And short of making such a claim, ICC cannot assert jurisdiction if Israel's Supreme Court declines to prosecute whatever Netanyahu is accused of.

The same high burden does not exist with respect to Russia. No one believes that Russian courts are independent of the government. And ICC, as any court, has to make an informed judgement. If it makes a judgement which is not credible, it's not likely to be enforced. And by making a judgement which is not near-universally recognized as sound, it can undermine its own institutional legitimacy.


The confusion may arise from the words "court of last resort" being used in the Rome Statute (as quoted above). The SCOTUS is sometimes referred to as "the court of last resort" because it is the court of last appeal. But ICC is explicitly not the court of last appeal. If a sovereign jurisprudence is capable and willing to consider a case (independently of state interference), the Rome Statue explicitly removes the jurisdiction from the ICC.

This difference in the meaning of the term "court of last resort" is sometimes described by calling the ICC "complementary" to sovereign jurisprudence when a sovereign jurisprudence is effectively too inept (and only then).

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    "it would be incredibly difficult for ICC to justify claiming that Israel's court is not independent" I read that part differently. The ICC could in principle always act whenever it thinks that a local court was unwilling, regardless of if the local courts was independent or not. Even an independent court can be wrong and the ICC can then try to correct this wrong. This is the simple idea of the ICC, I think. Feb 21 at 16:32
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    I am not sure what the Supreme Court has to do with this. Most domestic war crime prosecutions, in any country, would not be expected to go to Supreme Court level, because there wouldn't necessarily be any legally tricky things to look into, just possibly challenging evidence. And, in any case, the metric is not whether the courts are independent, it's whether they actually prosecute war crimes. Israel's record of punishment to IDF members seems... debatable (in the exact sense of the term, not in the sense I know it falls short). Though maybe not enough to warrant ICC's replacing. Feb 21 at 17:01
  • Would Israeli courts have jurisdiction over acts carried out in Gaza? I'm pretty sure Gaza cannot be said to have "a robust legal system which is independent of the government" (Hamas).
    – T.E.D.
    Feb 21 at 18:04
  • Also, you might be surprised about the state of judicial independence in Israel if you look closer.
    – T.E.D.
    Feb 21 at 18:09
  • @NoDataDumpNoContribution anyone can do anything, in theory. The question is whether the court can do it without violating its mandate. The US Supreme Court could (in theory) completely ignore the constitution, but that's not what one considers when going through a legal analysis. A court can ignore the laws establishing it, but then it becomes a kangaroo court. To retain legitimacy a court has to, carefully regard its jurisdiction, remain mindful of its mindful, and make sure to follow the laws it is designed to interpret. If it fails on any of those, its legitimacy becomes questionable.
    – wrod
    Feb 21 at 22:09
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Any President can be issued the arrest warrant so formally why not but of course it must the a reason for that.

There is no rule that exclusively the president of Russian Federation could be issued arrest warrant and no President of any other country. Hence theoretically yes, as long ICC decides it is a rightful action to do so.

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    But in this special case is there anything to suggest that Netanyahu might be worth such a warrant? To be fair this is something I would have expected from the question but if an answer can help out, why not. On the other hand the ICC will probably require lots of evidence just to be sure to not accuse people wrongly. Feb 19 at 21:01
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    But there is. The Russian Federation is not a US ally. So issuing of a warrant against Putin did not trigger "American Service Members Protection Act". Any NATO ally being targeted by the ICC, or any non-NATO ally (such as Australia, Egypt, Israel, Japan, Argentina, the Republic of Korea, and New Zealand) would trigger "American Service Members Protection Act", which would effectively put the ICC outside the law in the US and (depending on which actions the US elects to take) potentially many other countries.
    – wrod
    Feb 21 at 11:33
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    The question is written so as if there is some specific protection for Netanyahu so no, there is no any and it would be strange if it would be. And "American Service Members Protection Act" specifies that USA would be doing but does not prevent the warrant itself being issued.
    – Stančikas
    Feb 21 at 12:14
  • @Stančikas well, usually when talking about any action and asking if it's can be done, the implication is that it can be done without consequences. If you ask "can you shoot someone breaking into your house", the unstated assumption is that you are asking whether you can shoot them without suffering legal consequences rather than if you can physically shoot them. If the ICC were to do something which would make it an illegal organization in the US, the consequences for the ICC would be catastrophic. Feb 21 at 23:29
  • The ICC does not have nor does it claim, jurisdiction over every country on Earth. Not all countries are signatories to the treaty creating it.
    – ohwilleke
    Feb 22 at 0:25

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