Opinion: The International Criminal Court’s threat to Netanyahu

Editor’s note: Peter Bergen is CNN’s national security analyst, a vice president at New America, a professor of practice at Arizona State University and the host of the Audible podcast “In the Room With Peter Bergen,” also on Apple and Spotify. The opinions expressed in this commentary are his own. View more opinion at CNN.

To a rogue’s gallery that has included the late Libyan dictator Moammar Gadhafi and Russian President Vladimir Putin, Israeli Prime Minister Benjamin Netanyahu could soon be added now that prosecutors for the International Criminal Court are seeking a warrant for his arrest.

The ICC is a criminal tribunal that prosecutes individuals, just as the Nuremberg trials did after World War II. Established in 2002, the ICC has only secured 10 convictions for war crimes. Even though the ICC’s wheels of justice grind slowly, grind they do.

The move to charge Netanyahu has the potential to greatly alter how the war in Gaza plays out.

This development is far more significant for Netanyahu personally than the allegations of genocide against Israel in the case that South Africa brought in December in the International Court of Justice, which considers cases against countries.

An interim judgment from that court found that the Palestinians have “plausible” rights to protection from genocide, Joan Donoghue, then ICJ president at the time of the ruling, told the BBC. Israel has fiercely denied it is committing genocide in Gaza in the ongoing case.

ICC prosecutor Karim Khan told CNN’s Christiane Amanpour that the tribunal’s charges against Netanyahu and Israeli Defense Minister Yoav Gallant include “causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict.” In response, Netanyahu blasted Khan as one of the “great antisemites in modern times.”

The ICC is also simultaneously seeking arrest warrants for three top leaders of Hamas, but as a practical matter doing so won’t have much effect on the Islamist group, which is already designated as a terrorist organization by many countries, including the United States and the member states of the European Union.

Meanwhile, one of those Hamas leaders, Yahya Sinwar, whom Israel has accused of being the mastermind of the October 7 attack on the Jewish state, is believed to be hiding underground in the tunnels under Gaza.

There are 124 countries that have signed on to the ICC, which doesn’t include the United States or Israel. Those 124 countries would be duty-bound to arrest Netanyahu were the court to issue an arrest warrant for him. A panel of ICC judges will decide on Khan’s application for the arrest warrants.

Many of Israel’s closest allies such as the United Kingdom and Germany are parties to the ICC and would be bound by the court’s decision if a warrant were to be issued. It would greatly complicate their relations with Netanyahu since he would effectively become an international pariah who would not be able to travel to most countries. Already France and Belgium have issued statements in support of the ICC‘s requests for Netanyahu’s arrest warrant.

If approved, the arrest warrant for Netanyahu would appear to put Israel, a sovereign state acting in self-defense — albeit leading to the deaths of more than 35,000 Palestinians, according to the Ministry of Health in Gaza — on the same plane as Hamas, the terrorist group that instigated the war with its October 7 attacks on Israel that killed about 1,200 people.

In the United States, there has been predictable pushback against the ICC move to try to issue an arrest warrant against Netanyahu. Republican Senate Minority Leader Mitch McConnell fulminated, “The ICC has succeeded only in discrediting itself even further as a rogue kangaroo court utterly untethered to morality or justice,” while US President Joe Biden said the call for an arrest warrant against Netanyahu was “outrageous.”

But you can’t have it both ways. When the ICC and its lead prosecutor, Khan, issued an arrest warrant for Putin over alleged war crimes in Ukraine in 2023, there were hosannas on both sides of the aisle.

Biden declared the ICC arrest warrant for Putin “makes a very strong point,” adding that “he’s clearly committed war crimes.” Republican Sen. Lindsey Graham of South Carolina praised the court’s decision, saying, “The decision by the ICC to issue an arrest warrant for Vladimir Putin is a giant step in the right direction for the international community. It is more than justified by the evidence.”

One effect of the possible arrest warrant for Netanyahu is that the Israeli public may become more aware of what is happening in Gaza. Because of self-censorship exercised by the Israeli media, Israelis are watching a very different war playing out in Gaza than what the rest of the world is seeing. Israeli media rarely shows images of the large-scale destruction and the many thousands of civilian casualties in Gaza, according to a report this month in The Wall Street Journal.

The possible ICC arrest warrants for both Israeli and Hamas leaders are also likely to complicate the already thorny issue of the negotiations for the return of hostages held by Hamas in exchange for Palestinian prisoners held by Israel and for a ceasefire.

I’m attending a security conference in Qatar, the Global Security Forum. As is well known, Qatar had been playing a crucial mediating role between the United States, Israel and Hamas’ political leadership based in Qatar to release the 100 or more hostages that are still captive in Gaza, including eight Americans, along with the bodies of around 30 more.

The consensus among the delegates to the conference, which includes security experts from around the world, is that those negotiations have largely stalled.

The ICC’s move to seek an arrest warrant for Netanyahu may only harden his resolve to continue the war in Gaza seemingly indefinitely. In an address to his nation on Monday, Netanyahu said the ICC would not prevent Israel from attaining “total victory” against Hamas in a translation of his remarks by The Times of Israel.

This article has been updated with the latest death toll from the Ministry of Health in Gaza.