The court's warrants and the limits of international law

The International Criminal Court issued its warrants on November 21, and the names on the warrants were the ones that the world has watched all year: the Israeli prime minister, his former defence minister, and the military commander of Hamas. The pre-trial chamber found reasonable grounds to believe that the first two bore responsibility for war crimes, the use of starvation as a method of warfare and the intentional direction of attacks against the civilian population, and for crimes against humanity, murder, persecution and other inhumane acts, in the campaign in Gaza from October 2023; the third warrant named the Hamas commander for crimes committed on the day of the October attacks. The warrants, initially classified to protect witnesses, were announced in a statement that the court’s prosecutor described as a moment when the law speaks to the powerful.

The reaction was immediate, and the reaction was the story. The Israeli government denounced the warrants as politically motivated and the court as an instrument of bias, and the American administration declared itself opposed to the prosecution of the country’s allies; the European signatories of the court’s statute split, the countries that would arrest the prime minister if he set foot on their soil standing beside those that promised safe passage. The Hamas leadership’s response was equally defiant, the commander’s warrant dismissed by the movement as the court equating the occupier with the occupied. The warrants have been issued, and the warrants have been rejected, and the rejection is the measure of the court’s predicament.

The court’s jurisdiction is the first limit. The International Criminal Court depends on the cooperation of its member states, and Israel is not a member, the United States is not a member, and the warrants’ practical effect depends entirely on the willingness of the states that recognize the court to enforce them; the enforcement would matter most in the travel of the accused, the foreign visits, the transit lounges, the state dinners, and the planning of those journeys has already begun to account for the warrants.

The deeper limit is the political one. The court was designed to hold the powerful to account when the domestic systems would not, and the design has always been tested by the fact that the powerful are precisely the ones who can resist; the warrants against the Israeli leaders have been met with the full apparatus of pressure that the affected governments can bring, the accusations of bias, the threats of sanctions, the withdrawal of funding, and the apparatus is the environment in which the court’s next steps will be taken.

And yet the warrants are not without force. The charges themselves have entered the official record of the world’s court, the legal proceedings have been opened, and the governments that have accepted the court’s jurisdiction are now bound by the obligations that the warrants create; the symbolic weight is real, the reputational cost is real, and the precedent, a sitting head of government named in a warrant for conduct in an ongoing conflict, is the kind of precedent that the law accumulates and cannot easily undo.

The court’s warrants were issued in The Hague on a Thursday, and the warrants will be enforced, or not, in the airports and the ministries of the court’s member states. The law has spoken, and the law’s words are clear; the question that the warrants pose is the question that international law has always faced, whether the words can travel beyond the rooms where they are spoken. The warrants are the law’s boldest claim of the year, and the claim’s fate will be decided in the year ahead, in the travel schedules of the accused and the resolve of the states that signed the statute.