ICC’s Arrest Warrant for Bibi and Deif: ‘A Failed Attempt of Even-Handedness’ Biden and Experts Say
Israel is a state but not a member of the ICC; Palestine is an ICC member but not a state. Problems of jurisdiction are only the initial legal gray areas surrounding these arrest warrants.
By Nathan Klabin/The Media Line
The International Criminal Court (ICC) has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, former Defense Minister Yoav Gallant, and Hamas military chief Mohammed Deif, sparking intense controversy. While some see the move as a landmark in international justice, others criticize it as an overreach driven by geopolitical agendas.
US President Joe Biden condemned the ICC’s arrest warrants, stating, “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.”
Israeli Defense Minister Israel Katz called the ICC’s decision “a moral disgrace, entirely tainted by antisemitism,” claiming it serves Iran and its proxies. He described the court as a “hypocritical and illegitimate body” undermining Israel’s right to self-defense.
Countering these criticisms, Iain Edwards, a defense counsel at the ICC, stated that the prosecutor began investigating the Palestine situation in March 2021. “Open-source investigations of public speeches by Mr. Netanyahu and Mr. Gallant were conducted, alongside investigations into Hamas crimes,” he told The Media Line. “This was not a one-sided investigation. These efforts led to arrest warrant applications for three senior Hamas leaders and two senior Israeli leaders.”
Jurisdictions and Accusations
Edwards clarified that while Israel is not an ICC member state, the prosecutor can request an arrest warrant if there are reasonable grounds to believe a crime was committed within the court’s jurisdiction. “The bar is not very high: reasonable grounds to believe is not the same as proof beyond reasonable doubt, nor even the civil standard of ‘more likely than not,’” he explained.
Lt. Col. (res.) Maurice Hirsch, a legal analyst and director of the PA Accountability and Reform Initiative at the Jerusalem Center for Public Affairs, argued that the ICC’s jurisdiction depends solely on Palestine’s membership, as Israel is not a member. “This case should never have proceeded if the ICC weren’t so biased,” he told The Media Line. “The court effectively invented borders for a nonexistent state, raising serious questions about the legitimacy of these proceedings.”
While the warrants included a Palestinian leader alongside the two Israelis, experts like Alan Baker, director of the Institute for Contemporary Affairs and head of the Global Law Forum, argue that the ICC’s orders are more political than legal. “The warrants are issued in contravention of the ICC statute. The court does not have jurisdiction since no state of Palestine exists and hence the court is estopped from exercising its jurisdiction in the territories,” he told The Media Line. These warrants are a dead letter.”
Meanwhile, Prof. Eugene Kontorovich, professor of law and director of the Center for the Middle East and International Law at George Mason University, also dismissed the charges against Israel as baseless. “They’re accusing it of intentional starvation in Gaza, yet there’s no evidence to support this claim,” he told The Media Line. He pointed out that the UN’s World Food Programme recently warned of starvation but later clarified that no such situation exists. “If food shortages exist, it’s because Hamas is stealing food and driving up prices. Israel isn’t even responsible for food distribution in Gaza. So, this is a prosecution for a non-crime issued by a tribunal that lacks jurisdiction and has failed to achieve much of anything significant in its history.”
Dangerous Equivalences
The ICC’s arrest warrants for Netanyahu and Gallant also extended to Mohammed Diab Ibrahim Al-Masri, better known as Mohammed Deif, the military chief of Hamas, who has been presumed dead for over four months.
“This decision is almost medieval,” said Kontorovich. “They’re issuing an arrest warrant for a corpse. It shows how far they’re willing to go to create a false illusion of even-handedness. Of course, Hamas won’t be deterred by ICC warrants. They never had any consequences. For them, falling into the ICC’s hands and spending a decade in The Hague might even be preferable to falling into Israel’s hands. This kind of prosecution ends up deterring a Western liberal democracy from defending its citizens against genocide. It’s a complete perversion of international law,” declared Kontorovich. “There’s also a sense of urgency, particularly in Deif’s case, to issue an indictment against him posthumously before his body is recovered and he is confirmed dead.”
Deif, head of the Izz al-Din al-Qassam Brigades—the military wing of Hamas—was one of the planners behind the October 7 attacks. Although presumed dead since an Israeli airstrike in July, his death has not been fully confirmed.
Hirsch highlighted the “false equivalence” inherent in the ICC’s decision. “Placing Netanyahu—a democratically elected leader defending his country against genocide—in the same category as Deif, a terrorist who led Hamas’ military wing, creates a false equivalence. The ICC has allowed terrorists to dictate the narrative, ignoring that Israel acts in self-defense while facing genocidal attacks. This equivalence undermines the very principles of justice.”
This concern was echoed by Kontorovich, who argued that the focus on Hamas obscures the larger role of Iran. “The ICC is desperate to appear even-handed, which is why they’re targeting Hamas officials. However, equating Netanyahu with Hamas leaders isn’t serious—the real equivalent would be Iranian leaders. Yet, the ICC isn’t targeting Iran or Qatar, showing their cowardice in dealing with sovereign states on the opposing side. They are creating the illusion of even-handedness.”
Despite criticism from Israel, Edwards emphasized that the ICC’s recent actions followed standard procedures. “The judges have followed the normal procedure, have independently considered the evidence, and have taken a judicial decision. There is no reason to think politics has entered the equation. And there is no basis at all to think that the ICC is antisemitic,” he said. Edwards also clarified that the arrest warrants do not imply guilt. “These warrants suggest reasonable grounds to believe these individuals could be guilty of crimes within the ICC’s jurisdiction. This threshold is far lower than proof beyond a reasonable doubt, which is required at trial. The judges certainly did not state that these men were guilty. Only reasonable grounds to believe they are guilty. It’s very different.”
Real-Life Consequences of the Arrest Warrant
One significant consequence of the ICC’s arrest warrants could be travel restrictions for Netanyahu and Gallant to countries that comply with the orders. Canada, for example, has affirmed it would “abide” by the ICC’s arrest warrant for Netanyahu, according to Prime Minister Justin Trudeau.
Baker, who is also a former Israeli ambassador to Canada, criticized Trudeau’s stance. “Serious Canadian lawyers need to persuade their feckless Prime Minister and hostile Foreign Minister that the arrest warrants exceed the powers granted under the ICC statute, which Canada claims to uphold. Since no Palestinian state exists, there is no sovereign Palestinian territory, and thus the court cannot exercise jurisdiction there. These warrants have no legal validity,” he argued.
He also suggested that if Canada honored the warrants, it would be endorsing an invalid act by the ICC. “Canada, as a founding father of the ICC, should take the bold move of declaring the warrants invalid and announce its refusal to honor them to protect the integrity and credibility of the ICC, not to protect Netanyahu. Given Trudeau’s hostility toward Israel, I would advise Netanyahu not to visit Canada,” he added.
Edwards suggested Canada is unlikely to be the only country where Netanyahu could face arrest. While Hungary has stated it would not comply with such warrants, Edwards believes most European countries would enforce them if given the opportunity.
Although travel restrictions might seem like the most immediate consequence of the ICC’s actions, experts warn of deeper divisions among the parties involved in the Israeli-Palestinian conflict.
“Every time international forums like the ICC or UN General Assembly adopt anti-Israel positions, it emboldens the Palestinians and pushes them further into their corner,” Hirsch argued. “No Palestinian leader could now admit that this decision was biased. These actions strengthen their resolve to attack Israel in international forums, making political solutions even harder to achieve.”
Kontorovich explained that while narratives are subjective, the ICC’s move isolates Israel diplomatically. “This is clearly an attempt to isolate Israel diplomatically. Ironically, it could also isolate the ICC itself if actions like the Trump administration’s past sanctions are reintroduced.”
Hirsch concluded that the ICC’s decision “isn’t about justice; it’s a witch hunt against the Jewish state and its leaders. The repercussions are significant—not just for Netanyahu and Gallant, who may face restrictions on traveling to ICC member states, but also for Israel’s global image. When the ICC issues arrest warrants, it influences public opinion, grouping Israel with some of the world’s worst offenders.”
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