Mapping State Reactions to the ICC Warrants for Netanyahu and Gallant

Editor’s Note: This article is part of our ongoing symposium on the ICC and the Israel-Hamas war.

On Thursday, the International Criminal Court (ICC) announced it had issued arrest warrants for Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the former defense minister, in connection with alleged crimes committed in the ongoing armed conflict between Israel and Hamas. In doing so, the Court rejected as premature Israel’s challenge to the Court’s jurisdiction.  The Court’s decision to issue a warrant for the sitting Prime Minister of a state, which is notably not a party to the Rome Statute, also demonstrates the Court’s embrace of its prior controversial decision on immunity, namely that customary international law does not provide immunity for heads of state from criminal prosecution in international criminal courts, or at least not before the International Criminal Court. This position could be a source of tension for those states that support a customary international law rule providing head of state immunity before international tribunals, but are also bound by treaty to comply with the Court’s warrants and requests for arrest. 

States have now provided a range of reactions to the ICC’s decision, which can shed light on their views regarding these and other legal controversies as well as on the Court’s legitimacy and standing in the world. Some include political support or political pushback, and some include statements regarding their own intent to comply with the arrest warrants. The latter may be relevant to ongoing consideration of customary international law governing immunity. Thus far, however, states generally have refrained from opining directly on the immunity issue as such. Inferring a state’s views on immunity is complicated further still by statements that do not distinguish between a sitting head of state and a (former) defense minister.  Several states have signaled their intent to comply with the arrest warrants or even called on others to do the same.  Other states have remained circumspect about their intent to do so.

We have begun the project of collecting, analyzing, and categorizing official statements in response to the ICC’s announcement, which we consolidate below and will continue to update. If we have missed anything, please send us an email at lte@justsecurity.org. For mapping purposes, we have used the following categories of statement:

1. Political support and intent to comply with the ICC
2. Compliance alone 
3. Non-committal
4. Critique on policy grounds 
5. Critique on legal grounds and/or suggestion of non-compliance 
6. Critique on policy and legal grounds and/or suggestion of non-compliance 

This project is inspired by a similar mapping exercise that I undertook alongside Alonso Gurmendi Dunkelberg, Priya Pillai, and Elvina Pothelet, on U.S. strikes in Syria in 2018.  As we highlighted then, States vary greatly in the language they deploy to respond to such events, and many statements include a fair amount of nuance that may require some parsing in order to classify into neat groups like the above.  Complicating matters further, there are often statements from multiple actors within the state that may add color to the formal positions coming out of foreign ministries, or which may alternatively reflect non-cleared views.  There will be some statements on which reasonable minds may differ regarding how to classify.  For example, Germany’s spokesperson issued a formal statement foregoing a decision on compliance until a “foreseeable” visit would bring the matter to a head, but then added color to that formal statement of non-commitment by saying, “I find it hard to imagine that we would make arrests on this basis.”  We thus moved Germany to category E due to the suggestion of non-compliance.  Similarly complex: Italy’s foreign minister issued a carefully worded non-committal and pledge to “evaluate” with allies the decision and how to respond, but the defense minister stated that Italy would “have to” carry out the arrests.   In cases of conflicting statements within the state, we have classified the state according to the formal statement issued by the foreign ministry, but have included additional statements that provide readers with a more nuanced account.

For their extraordinary efforts in this process, I am grateful to Clara Apt, Audrey Baillette, Isaac Buck, Charlotte Kahan, and Maya Nir for canvassing official statements and to Pooja Shah for creating the interactive map.

Last Updated on: 11/22/2024 1:20 PM ET

A. Political support and intent to comply with the ICC

1. Belgium

• Individual: Ministry of Foreign Affairs
• Statement: “The fight against impunity wherever crimes are committed is a priority for Belgium, which fully supports the work of the @IntlCrimCourt. Those responsible for crimes committed in #Israel and #Gaza must be prosecuted at the highest level, regardless of who committed them.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

2. Ireland

• Individual: Prime Minister Simon Harris
• Statement: “These charges could not be more serious,” Prime Minister Simon Harris said in a statement. “The situation in Gaza could not be more desperate, is an affront to humanity and cannot be allowed to continue a moment longer.” “The Government has long expressed its profound concern about the conduct of the war in Gaza and has stated clearly its belief that the rules of international law and international humanitarian law have not been upheld,” he said. “[T]hose who commit war crimes and crimes against humanity, must be held fully to account.” He also stated anyone in a position to assist the court “must now do so with urgency.” Link, Link
• Date: November 21
• State Party to the Rome Statute: Yes

3. Jordan

• Individual: Minister of Foreign Affairs Ayman Al-Safadi
• Statement: “As I said before, the tragedy in Gaza has to stop. Now, I will be very sober in my comment. It is not a political decision. It is a decision of a Court, of a Court of Justice, of the International Criminal Court. The decisions of the courts have to be respected and implemented. So, I take note of the decision of the International Criminal Court to issue arrest warrants for Prime Minister [Benjamin] Netanyahu, the former Minister of Defence Minister [Yoav] Gallant, and the Hamas’ leaders. This decision is a binding decision and all States, all States parties of the [Rome Statute of] Court, which include all members of the European Union, are bound to implement this court decision.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

4. Palestine

• Individual: Palestinian Authority Official Statement
• Statement: The Palestinian Authority said “[t]he ICC’s decision represents hope and confidence in international law and its institutions.” It urged ICC members to enforce “a policy of severing contact and meetings with internationally wanted individuals, Netanyahu and [Yoav] Gallant.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

5. South Africa

• Individual: South African Government Official Media Statement
• Statement: “The South African Government welcomes the ICC’s recent warrants for Prime Minister Benjamin Netanyahu, former Minister of Defence Yoav Gallant, and Mohammed Deif of Hamas. These actions mark a significant step towards justice for crimes against humanity and war crimes in Palestine. South Africa reaffirms its commitment to international law and urges all state parties to act in accordance with their obligations in the Rome Statute. We call on the global community to uphold the rule of law and ensure accountability for human rights violations.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

6. Turkey

• Individual: Minister of Foreign Affairs Hakan Fida
• Statement: “The arrest warrant issued by the International Criminal Court for Netanyahu and Gallant is hopeful in terms of justice being served. This decision is an extremely important step in bringing to justice the Israeli authorities who committed genocide against Palestinians. We will continue to work to ensure that international law, with all its institutions and rules, is put into practice to punish genocide. This is our obligation not only to the massacred Palestinians, but to all oppressed nations and future generations.” Link
• Date: November 21
• State Party to the Rome Statute: No

B. Compliance alone

1. Canada

• Individual: Prime Minister Justin Trudeau
• Statement: “First of all as Canada has always said it’s really important that everyone abide by international law. This is something we’ve been calling on from the beginning of the conflict. We are one of the founding members of the International Criminal Court…we stand up for international law and we will abide by all the regulations and rulings of the international courts. This is just who we are as Canadians. At the same time we need to keep working to solve this terrible situation. We need to see aid flowing in, to people who are facing famine and disease. We need to see all the hostages released, we need to see Hamas lay down its arms. We condemn Hamas for its continued actions. We need to see a ceasefire that protects civilians. We need to get back on track towards a two-state solution with a peaceful Israel living alongside a peaceful Palestinian State. These are the things that Canada has been working on and at the same time we have to recognize as Canadians that it’s been very very difficult for members of different communities in this country. We have to remember who we are, be there for each other, understand that people are angry and grieving but remember that we are all pushing for peace and stability as hard as we can.” Trudeau said. Foreign Affairs Minister Melanie Joly echoed this sentiment: “We need accountability in our world, and so based on that, Canada will abide by its obligation under the ICC treaty,” Joly said. “We will abide by our treaty obligations because we believe in international accountability. We believe in the ICC. Now, I won’t give a hypothetical answer based on a hypothetical question, but my point is [that] Canada is a founding member, has signed the treaty, and therefore needs to follow its obligations.” Link, Link
• Date: November 21
• State Party to the Rome Statute: Yes

2. Netherlands

• Individual: Foreign Minister Caspar Veldkamp
• Statement: “Foreign Minister Caspar Veldkamp said that his country ‘respects the independence of the ICC.’ ‘We won’t engage in non-essential contacts and we will act on the arrest warrants. We fully comply with the Rome Statute of the ICC,’ he added.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

3. Norway

• Individual: Foreign Minister Espen Barth Eide
• Statement: “The International Criminal Court (ICC) has issued arrest warrants against Mohammed Diab Ibrahim Al-Masri, Benyamin Netanyahu and Yoav Gallant. The ICC plays a crucial role in ensuring accountability for serious crimes,’ said Foreign Minister Espen Barth Eide. “It is important that the ICC carries out its mandate in a judicious manner. I have confidence that the Court will proceed with the case based on the highest fair trial standards.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

4. Spain

• Individual: Ministry of Foreign Affairs to El Día
• Statement: “España respeta la decisión de la Corte Penal Internacional y cumplirá con sus compromisos y obligaciones en relación al Estatuto de Roma y el Derecho Internacional”, aseguran a este diario fuentes oficiales del Ministerio de Exteriores. “Spain respects the decision of the International Criminal Court and will comply with its commitments and obligations in relation to the Rome Statute and international law,” official sources from the Ministry of Foreign Affairs assured this newspaper. Link
• Date: November 21
• State Party to the Rome Statute: Yes

5. Switzerland

• Individual: Swiss Federal Office of Justice
• Statement: “The Swiss Federal Office of Justice said it is obliged to cooperate with the ICC under the Rome Statute and would therefore have to arrest Netanyahu, Gallant or Masri if they entered Switzerland and initiate extradition to the court.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

C. Non-committal

1. China

• Individual: Spokesperson for the Foreign Ministry, Lin Jian
• Statement: “China hopes the ICC will uphold an objective and just position (and) exercise its powers in accordance with the law.” Link
• Date: November 22
• State Party to the Rome Statute: No

2. France

• Individual: Foreign Minister Christophe Lemoine
• Statement: “When asked during a news conference if France would arrest Netanyahu, Foreign Minister Christophe Lemoine said it was a legally complicated question. ‘It’s a point that is legally complex so I’m not going to comment on it today,’ he said.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

3. Italy

• Individual: Foreign Minister Antonio Tajani
• Statement: “We support the ICC, while always remembering that the court must play a legal role and not a political role. We will evaluate together with our allies what to do and how to interpret this decision,” Foreign Minister Antonio Tajani. // “Italian Defense Minister Guido Crosetto told Italian broadcaster RAI that Italy would ‘have to arrest’ Netanyahu and Gallant given the ICC’s warrants, but he said that it was ‘wrong’ to put the two Israeli officials on the same level as Hamas.” Link, Link
• Date: November 21
• State Party to the Rome Statute: Yes

4. Sweden

• Individual: Foreign Minister Maria Malmer Stenergard
• Statement: “Sweden and the EU support the important work of the court and safeguard its independence and integrity,” Foreign Minister Maria Malmer Stenergard said. Link
• Date: November 21
• State Party to the Rome Statute: Yes

5. United Kingdom

• Individual: Prime Minister Keir Starmer
• Statement: “We respect the independence of the ICC, which is the primary institutional institution for investigating and prosecuting the most serious crimes in relation to international law. “This Government has been clear that Israel has a right to defend itself in accordance with international law. There is no moral equivalence between Israel, a democracy and Hamas and Lebanese Hezbollah, which are terror groups. “We remain focused on pushing for an immediate ceasefire to bring an end to the devastating violence in Gaza.” Sir Keir’s spokesman said: “We never comment on future international visits but my position on the Prime Minister’s support for Israel in terms of its right to defend itself in accordance with international law is very clear.” The spokesman repeatedly declined to “go into hypotheticals” about whether Mr Netanyahu would be arrested if he arrived in the UK. He added: “It’s not up to the Prime Minister to determine other world leaders’ travel schedules. He engages and will continue to engage with the prime minister of Israel in support of Israel’s right to defend itself.” Pressed on what he meant by his comments about the court, the spokesman said: “It means that we respect the independence of the ICC. We respect the fact that the ICC is the primary international institution for investigating and prosecuting the most serious crimes of international concern.” The spokesman went on to say the Government’s “focus” remained an end to the violence in the Middle East, which has been ongoing for more than a year after the Oct 7 terror attacks by Hamas. On being asked about the US describing the ICC as a “kangaroo court”, the spokesman replied: “We respect the independence of the ICC.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

D. Critique on policy grounds

1. Argentina

• Individual: President Javier Milei
• Statement: Declaration of the Argentine Republic in defense of Israel: “The Argentine Republic expresses its deep disagreement with the recent decision of the International Criminal Court (ICC) to issue arrest warrants against the Prime Minister of Israel, Benjamin Netanyahu, and the former Minister of Defense, Yoav Gallant. This resolution ignores Israel’s legitimate right to defend itself against constant attacks by terrorist organizations such as Hamas and Hezbollah. Israel faces brutal aggression, inhumane hostage-taking, and indiscriminate attacks against its population. Criminalizing the legitimate defense of a nation while omitting these atrocities is an act that distorts the spirit of international justice. Argentina stands in solidarity with Israel, reaffirms its right to protect its people and demands the immediate release of all hostages. We call on the international community to condemn the actions of Hamas and Hezbollah, defend Israel’s sovereignty, and act with justice and impartiality in the pursuit of lasting peace in the region.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

2. Czech Republic

• Individual: Prime Minister Petr Fiala
• Statement: “Czech Prime Minister Petr Fiala said ‘the ICC’s unfortunate ruling undermines authority in other cases by equating the elected representatives of a democratic state with the leaders of an Islamist terrorist organization.’” Link
• Date: November 21
• State Party to the Rome Statute: Yes

3. Israel

• Individual: Prime Minister Benjamin Netayahu, Office of PM
• Statement: “Israel rejects with disgust the absurd and false actions leveled against it by ICC,” compared to “the modern-day Dreyfus trial – and it will end in the same way,” Prime Minister Benjamin Netayahu’s office. “No war is more just than the war Israel has been waging in Gaza since October 7th 2023, when the Hamas terrorist organization launched a murderous assault and perpetrated the largest massacre against the Jewish People since the Holocaust,” the statement continued. “Prime Minister Benjamin Netanyahu will not give in to pressure. He will continue to pursue all the objectives that Israel set out to achieve in its just war against Hamas and the Iranian axis of terror,” it read. Prime Minister Benjamin Netayahu’s office. Link, link
• Date: November 21
• State Party to the Rome Statute: No

4. United States

• Individual: White House National Security Council Spokesperson, US President Joe Biden
• Statement: “The United States fundamentally rejects the Court’s decision to issue arrest warrants for senior Israeli officials. We remain deeply concerned by the Prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision,” White House National Security Council Spokesperson. “The ICC issuance of arrest warrants against Israeli leaders is outrageous. Let me be clear once again: whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.” Statement from U.S. President Joe Biden. Link, link
• Date: November 21
• State Party to the Rome Statute: No

E. Critique on legal grounds / suggestion of non-compliance

1. Germany

• Individual: Spokesperson for the Federal Government, Steffen Hebestreit
• Statement: “The Federal Government was involved in drafting the ICC statute and is one of the ICC’s biggest supporters. This position is also the result of German history. At the same time, it is a consequence of German history that we share unique relations and great responsibility with Israel. We will carefully examine the domestic steps. Any further action would only be taken when a stay by Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Galant in Germany is foreseeable.” Hebestreit is further quoted as saying, “I find it hard to imagine that we would make arrests on this basis.” Link, link
• Date: November 22
• State Party to the Rome Statute: Yes

F. Critique on policy and legal grounds / suggestion of non-compliance

1. Austria

• Individual: Foreign Minister, Alexander Schallenberg
• Statement: “The International Criminal Court’s (ICC) decision to issue arrest warrants for Israel’s Prime Minister Netanyahu and former Defence Minister Gallant is utterly incomprehensible. It is absurd to create an equivalence between members of a democratically elected government and the leader of a terrorist organisation. International law is non-negotiable and applies everywhere, at all times. This includes the fight against Hamas terror. However, we must never forget that the conflict in Gaza is highly asymmetrical: On one side is Israel, the only democracy in the Middle East, and on the other is a terrorist organisation whose explicit aim is the destruction of the State of Israel. With all due respect for the independence of the International Criminal Court, this decision undermines international law and is a disservice to the Court’s credibility.” Link
• Date: November 21
• State Party to the Rome Statute: Yes

2. Hungary

• Individual: Hungary’s foreign minister Peter Szijjártó, and Prime Minister Orban
• Statement: “Hungary’s foreign minister Peter Szijjártó blasts the ICC’s ‘shameful and absurd’ decision to issue arrest warrants against Netanyahu and Gallant. ‘This decision disgraces the international judiciary by equating leaders of a country attacked by a heinous terror attack with the leaders of the terrorist organization responsible,’ he says in a call with Foreign Minister Gideon Sa’ar, according to a Hungarian readout.” Orban on X: “The #ICC arrest warrant against Prime Minister @netanyahu is brazen, cynical and completely unacceptable. I invited Prime Minister Netanyahu for an official visit to Hungary, where we will guarantee his freedom and safety.” Link, link
• Date: November 21, November 22
• State Party to the Rome Statute: Yes

Editor’s note: Readers may also be interested in Tom Dannenbaum, Nuts & Bolts of the International Criminal Court Arrest Warrants in the ‘Situation in Palestine’ (Nov. 22, 2024)

IMAGE: The building of the International Criminal Court in The Hague.