The warrants issued by the International Criminal Court against Israel’s prime minister and former defense minister represent many historic firsts. They would be the court’s first prosecutions of leaders in a liberal Western democracy, and represent the first time anyone has been charged with the “crime of starvation”; the first time the court has accused a country of war crimes during a defensive war against an external invader; and the first prosecution of a non–member state at the bequest of a member that is not generally recognized as a state.

For all of these juristic innovations, the warrants also represent something entirely familiar: an international institution, created to serve high and noble purposes, succumbing to the temptation of pursuing an anti-Israel agenda. This phenomenon is on routine display at the United Nations’ General Assembly and Human Rights Council.

The charges are baseless as a matter of law and fact, issued by a court with no jurisdiction, alleging as crimes things that simply never happened, while ignoring settled international law and practice. But before turning to the Israel warrants, we need to understand what the ICC really is.

[Arash Azizi: The International Criminal Court shows its mettle]

The ICC, seated in the Netherlands in The Hague, was created in 1998 by a treaty known as the Rome Statute, to provide a forum where the perpetrators of the world’s worst atrocities could be prosecuted, a kind of permanent Nuremberg Tribunal. The new court would not impinge upon national sovereignty, because it would have jurisdiction only over countries that voluntarily joined. In the optimistic decade between the fall of the Soviet Union and the attacks of 9/11, some hoped that the court would lead to an “end to impunity” for mass atrocities—such as the Bosnian and Rwandan genocides—and lead to a “rules-based international order.”

That dream has never seemed further off. A quarter century later, most of the world’s population lives in countries that never joined the court—including the United States and China, India and Pakistan, and pretty much the entire Middle East. Many of the countries that joined the ICC face little serious prospect of engaging in armed conflict; for them, membership entails little risk, and is merely a feel-good ritual.

Despite a roughly $200 million annual budget, the tribunal has convicted only six people of perpetrating the mass atrocities it was created to address. Numerous high-profile cases have collapsed. Its indictments against incumbent dictators such as Russia’s Vladimir Putin have been laughed off. The current and past presidents of Kenya both rode ICC indictments to reelection. (The cases against them had been dropped because of what the ICC’s presiding judge described as “witness interference,” a claim the ICC disputed.) Two countries have quit the court altogether, shaking belief in the inevitable, gradual expansion of The Hague’s writ.

The composition of the ICC’s membership has created a serious problem for the court. The largest concentration of member states is in Africa, but every defendant tried by the Court has been a sub-Saharan African, leading to a threat of mass walkout by African Union states.

The charges against Israel can be understood, in part, as a solution to this predicament. They serve to deflect criticism of the court as a Western tool, and were received with enthusiasm by international NGOs. And they come with a major advantage: As a non–member state, Israel can’t quit in protest.

But that also means the court should not, by rights, have jurisdiction over Israel. To overcome this obstacle, the court decided that Palestine is a state that can join the court, despite not satisfying the legal criteria for statehood. Such an exception has not been made for any other entity. It also controversially decided that Gaza was part of that state, in addition to the West Bank, despite each having had an entirely different government for nearly two decades.

Then the ICC ignored a second limitation on its reach. Its governing statute instructs it to intervene only when a state is “unwilling or unable” to prosecute crimes by its leaders, in order to shield them from responsibility. Not only is Israel’s attorney general willing to prosecute Prime Minister Benjamin Netanyahu—she is already doing so in several high-profile cases involving alleged corruption.

The more likely reason the Israeli justice system is not pursuing the charges brought by the ICC is because they appear to be unfounded. The main thrust of the court’s claims (the details of which remain sealed by the tribunal) is that Israel purposefully starved the people of Gaza, as well as restricted electricity to the area. Yet in June, the UN’s own hunger watchdog released a report denying that famine occurred during the period addressed by the prosecutor. Nor does Israel’s allowing shipments of food into the Gaza Strip, which one estimate placed at more than 3,000 calories a day per person, suggest an attempt to starve the population, even if conditions in parts of the Strip have been dire.

Hamas controls food distribution within Gaza, and has been seizing aid convoys. Aid groups complain that Israel has been constricting the flow of food into Gaza; Israel counters that aid has piled up on the Gaza side of the border without distribution. Moreover, international law allows for besieging an enemy force, even if civilians are within the besieged area. Exceptions allow for the provision of essential medical supplies, but even those exceptions are suspended when there is a credible fear of “diversion” to the enemy force, as there surely is with Hamas. If anything, Israel is being blamed for Hamas’s starvation of its own population.

Supporters of the ICC should be embarrassed that its decision was cheered by Hamas and Hezbollah. Those groups understand that the court’s indictments of Israeli officials will make it more difficult for Israel to defend itself. Yet the ICC cannot deter dictators and warlords, because they can fall into its hands only if they lose power. If they remain in power despite their atrocities, a minor crimp in their travel plans is more than offset by the power and wealth they will enjoy.  The three Hamas leaders indicted by the tribunal have already been killed by Israel; they might have preferred a cell in The Hague.

Leaders of democracies must make different calculations; they rotate out of power, and their private benefits in office are relatively minimal. ICC warrants against them, even if entirely unjustified, could deter them from vigorously and lawfully prosecuting defensive wars, for which their civilian populations would pay the price. Thus, the prosecutions of Israeli officials will actually make war crimes more likely, by tipping the scales against liberal democracies.

All of this poses a threat to the U.S.—as a non–member state that engages in a high level of global armed conflict—as well as to its leaders and soldiers. The ICC could recognize the Islamic State in the Levant as a “state” for purposes of its jurisdiction, just as easily as it recognized Palestine, and investigate American officials for alleged crimes during the U.S.-led campaign against the terror group. That campaign, started during Barack Obama’s presidency, included battles in Mosul, where an effort to evict approximately 5,000 ISIS fighters in the city led to perhaps 10,000 civilian deaths and the destruction of the city. The ICC did not have jurisdiction, because Iraq had not joined the treaty—but the Palestine precedent shows that this is not an insurmountable problem.

[Gershom Gorenberg: Israel’s disaster foretold]

The ICC’s disregard for law also threatens American troops on counterterror missions in countries that have joined the ICC. Washington has long relied on treaties signed with such countries as a safeguard against Hague jurisdiction, but the tribunal’s boundless view of its powers gives no assurance that those treaties will be honored.

This is not far-fetched: The ICC is already investigating alleged U.S. crimes in Afghanistan. Indeed, the ICC prosecutor recently suggested that sitting U.S. senators may have committed crimes against the court’s charter by speaking out in support of bipartisan legislation that would impose sanctions on the body.

Not all efforts to solve the world’s problems work—some backfire. The high aspirations with which the tribunal was founded should not shield it from the consequences of its decision to pursue other agendas.

Passing judgment on the Israeli-Palestinian conflict was never going to be simple for the International Criminal Court. Even harder than acting fairly and impartially would be appearing to have done so, in a conflict that stirs fierce passions the world over.

On top of that, equality before the law is a basic principle of justice, but until this point, the ICC has mainly prosecuted authoritarian and non-Western leaders. Almost all of the court’s top funders are Western democracies or their allies. Now, for the first time in its history, the ICC would be asked to assess the actions of a democratically elected government allied with the West, and to show that it could do so without special favor.

Last Thursday, the ICC rose to this challenge. A three-person panel at the court approved arrest-warrant requests for Israel’s prime minister, Benjamin Netanyahu, and former Defense Minister Yoav Gallant. The Israeli officials are accused of war crimes and crimes against humanity, including the murder and starvation of Palestinians.

[Eugene Kontorovich: The International Criminal Court’s folly]

Back in May, prosecutors also asked for arrest warrants for three Hamas leaders, who stand accused of extermination, murder, rape, and sexual assault against Israeli citizens during the attacks of October 7. Two of the three (Ismail Haniyeh and Yahya Sinwar) have since been killed by Israel. The ICC issued the arrest warrant for the third, Mohammed Deif. Israel claims to have killed him too, but Hamas has not confirmed his death.

The three judges who made the decision hail from Benin, France, and Slovenia, but were elected by all 124 member states of the ICC and went through a rigorous vetting process. Their months-long deliberations included engaging with the Israeli government and assessing its claim that its own courts could handle the matter.

Since its foundation, in 2002, the ICC has investigated crimes all over the world. It is limited in both the types of crimes it can investigate (genocide, war crimes, crimes against humanity, and aggression) and its territorial jurisdiction (restricted mostly to its member states, which include countries in the European Union, Latin America, the antipodes, and half of Africa). Yet it has managed to levy charges for crimes committed in 17 countries and issue arrest warrants for despots such as Vladimir Putin, Muammar Qaddafi, and Omar al-Bashir.

For years, however, many non-Western leaders have accused the court of having a pro-Western bias. The arrest warrants against Israeli leaders offer the ICC an opportunity to prove otherwise. But much will depend on how seriously countries allied with Israel take the court’s orders.

The court’s members include the majority of Western countries, which will now be obligated to arrest Netanyahu or Gallant if either sets foot in their territory. Canada, one of the court’s biggest funders, was among the first to commit to doing so. Belgium, Ireland, Portugal, Norway, Australia, Spain, Liechtenstein, the Czech Republic, Finland, the Netherlands, Denmark, and Slovenia have followed suit. Most other Western countries have treated the warrant with vagueness, generally agreeing that it is valid without committing specifically to arresting Netanyahu and Gallant.

Initially, only one EU member, Viktor Orbán’s Hungary, a self-described “illiberal democracy,” outright opposed the warrant and even asked Netanyahu to visit. But on November 27, France declared that it considered Netanyahu immune from the ICC’s order because Israel is not a member of the court. If this principle is to be applied elsewhere, Putin, too, should be considered immune, given Russia’s non-membership in the ICC. The United States is also not a member of the court and is in fact openly hostile to its operations. The Biden administration has declared its disagreement with the arrest warrants, and surrogates of President-Elect Donald Trump have accused the court of anti-Semitism, promising a much tougher approach when Trump comes into office.

Netanyahu, like many others wanted by the court, will probably never appear before it. But that doesn’t make the ruling meaningless. International law has always been aspirational, in part because the world lacks an international law-enforcement agency (Interpol serves only to coordinate among various national police forces). But international justice has more significance in the world today than at any previous time in human history. Dozens of treaties obligate countries around the world and are referenced every day in national and transnational courts, sometimes leading to real results for victims and perpetrators. Viewed from a long historical perspective, this is a grand achievement. And last week’s ruling, by demonstrating an equal application of international law to a Western country, advances that cause.

In Governing the World: The History of an Idea, the historian Mark Mazower writes that the quest for a global court began before the First World War, with an enthusiastic, international group of peace activists who hoped that arbitration could bring an end to war. President Theodore Roosevelt, an ardent supporter of that movement, helped give tooth to the Permanent Court of Arbitration, founded in 1899 at The Hague. But advocates’ hopes soon crashed into the gory realities of the 20th century. The First World War killed millions. The League of Nations, created in its aftermath, was soon overtaken by events: Liberalism retreated behind fascism and communism in the 1930s, and a Second World War followed the first, culminating in atrocities with little precedent in human history.

[Arash Azizi: The problem with boycotting Israel]

Still, the quest for international justice did not die. The defeat of Nazi Germany and of Japan, and the revelation of the extraordinary extent of their crimes, led to international trials in Nuremberg and Tokyo and the foundation of the United Nations.

Nearly a century later, the International Criminal Court was founded during the optimistic period that followed the fall of the Soviet Union, in 1991. Democracy appeared ascendant, maybe even inevitable. The genocides in Rwanda and the territories of the former Yugoslavia tempered that period’s hopes—but they were met with international tribunals, which held out the promise that war criminals could no longer expect impunity. A United Nations conference in 1998, attended by representatives of 161 states, adopted the Rome Statute, which established the ICC four years later.

Many of the legal professionals who went to work for the ICC had been shaped by the experience of working for the ad hoc tribunals for Rwanda and Yugoslavia, which were relatively successful in delivering verdicts against human-rights offenders. For example, the Iranian Canadian lawyer Payam Akhavan served as a legal adviser at the tribunals for both Rwanda and Yugoslavia and then argued cases before the ICC, where he represented post-Qaddafi Libya as the country attempted to bring officials of the former regime to justice. In his book, In Search of a Better World: A Human Rights Odyssey, Akhavan describes the establishment of the ICC as the consummation of the idea of justice propounded at Nuremberg.

But the ICC has been bedeviled by controversy for much of its short life. In its early years, the court focused largely on African war criminals, because many of its member states were African. This led to allegations of bias. In the years since, it has expanded its operations across the world. And yet, most people live in countries where the court has no jurisdiction. Powerful nations such as China, India, Indonesia, and Saudi Arabia never joined. The United States, Israel, and Russia signed the Rome Statute but then withdrew their signatures. The year the court was founded, the United States adopted the American Service-Members’ Protection Act, in which it promised to take any necessary measures to release “any U.S. or allied personnel” detained by the court.

A far simpler way of denying the court’s authority is to ignore it. In 2015, South Africa refused to arrest Sudanese President Omar al-Bashir despite an ICC warrant. Earlier this year, Mongolia all but rolled out the red carpet for a visit from Russian President Vladimir Putin, the ICC’s warrant for his arrest notwithstanding.

But none of this means that the court, or the quest for international justice more broadly, is ineffectual. Putin has had to skip many an international summit (he skipped the recent Group of 20 meeting in Brazil, just as he did last year’s BRICS meeting in South Africa). And the ICC’s legal work can be used by other courts to prosecute alleged perpetrators. In the case of Israel, Netanyahu and Gallant are unlikely to ever be tried in The Hague, but the world has become much smaller for them. The warrants also provide an opportunity for Israel’s judicial system to prove its mettle: The ICC has declared that if Israel chooses to prosecute the allegations in its national court system, the warrants will be dropped.

The quest to have human conflicts decided by men and women in robes and wigs, and not just those in berets and boots, should resonate deeply with Israel’s founding ideals. The state’s declaration of independence in 1948 promised that it was “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.” But it anchored this right in international law, pointing to the newly formed United Nations, which is mentioned seven times in the declaration.

Israel’s first government was led by nationalists and socialists. But the country’s first justice minister, and the architect of its judicial system, was one of the few signatories of the declaration who defined himself primarily as a liberal. A Berlin-born lawyer, Pinchas Rosen had moved to the British Mandate for Palestine in 1926, at the age of 39, having earned law degrees in Germany before the country’s liberal traditions were destroyed by Nazism.

Israel was hardly a liberal paradise in its early years. It enforced a military rule over its Arab citizens until 1966. But Rosen did establish a robust court system and was adamant that the State of Israel was to be a state of law. The country joined the United Nations and, with such legendary diplomats as the British-educated Abba Eban, overcame the isolation of its early years to establish a seat for itself at the table of international law. Israel’s occupation of Palestinian territories since 1967 has rightly called that commitment to the law into question; but it has also been the subject of contestation within the country.

[Gershom Gorenberg: Israel’s disaster foretold]

Practically all of Israel’s political leaders have condemned the ICC’s decision. But some voices of dissent are audible. Naama Lazimi, a progressive member of the Knesset, called Thursday “a sad day for Israel” and put the blame for the decision on Netanyahu, not the court. “This was unnecessary,” she wrote on X, adding that it could have been avoided if the Israeli government had undertaken an independent inquiry and pursued a settlement to end the war and return the hostages held by Hamas. “But Netanyahu chose and still chooses his own position and cynical and personal interests,” she concluded: “The Hague has come out against Netanyahu, Netanyahu against Israel.” The Israeli organization Peace Now has taken a similar position, blaming the country’s leadership.

The long-term interests of Israel and those of enthusiasts for international law need not diverge. As a small country with many ill-wishers, surrounded by militias that clamor for its destruction, Israel often feels itself under siege and classifies any action against it as an unforgivable betrayal. But the country owes much of its past success to its recognition under international law and its membership in the community of democratic nations. Illegally occupying the Palestinian territories, and disregarding competent international forums such as ICC, serve to undermine that status. A world where liberal democratic norms, such as respect for international legal institutions, are more prevalent will ultimately be a safer one for Israel, especially if it wishes to fulfill the dream of its founders to be a Jewish and democratic state.  

The call from The Hague should thus be seen as an urgent message that the country needs to correct its course and step back from the campaign it has pursued since October 2023. True friends of Israel are not those who attempt to shield it from international justice. They are those who remind it that as a sovereign nation, it has the right to defend itself—but not the right to be immune from legal judgment.