Colin Sheridan: ICC justice for Netanyahu? Maybe not — but the arrest warrant still changes everything

Irish Examiner

3 days ago

In school, most of us learned about The Hague the way one learns about algebra or Shakespeare — with begrudging reverence.
A solemn Dutch city, home to two of the most formidable-sounding institutions ever cooked up by the sober minds of the post-Second World War West — the International Court of Justice (ICJ) and the International Criminal Court (ICC). One for disputes between states. The other for the monsters among us — war criminals, genocidaires, and heads of state with more skeletons than mistresses.
But lately, those halls of justice have grown quiet. The problem isn't just that people have stopped listening to the verdicts. It's as if they've stopped pretending to care at all. If all the courts can do is issue warrants nobody will enforce, then what is the point?
Last year, the ICC's chief prosecutor, Karim Khan, requested arrest warrants for Israeli prime minister Benjamin Netanyahu and defence minister Yoav Gallant. Charges of war crimes and crimes against humanity, tied to Israel's genocide in Gaza.
We know by now who said what, but it's instructive to go back in time a little, and learn that none of what we heard came as a surprise.
In March 2021, the ICC formally launched an investigation into alleged violations in the Occupied Palestinian Territories, covering actions by Israel and Hamas dating back to 2014. The investigation focused on alleged war crimes in Gaza, the West Bank, and East Jerusalem. The announcement triggered strong, sharply divided reactions from governments, human rights organisations, and legal observers.
Israel, unsurprisingly, strongly condemned the ICC's decision. Netanyahu called it 'the essence of anti-Semitism and hypocrisy', further citing that the ICC had no jurisdiction, as Israel is not a party to the Rome Statute (the founding treaty of the ICC), and that Palestine, in Israel's view, is not a sovereign state capable of delegating jurisdiction. The Israeli government doubled down, vowing to protect its military personnel and refuse co-operation.
The Palestinian Authority (the much-maligned Fatah-controlled government body that exercises partial civil control over the Palestinian enclaves in the Israeli-occupied West Bank) welcomed the decision as a long-awaited step toward justice, calling it 'a historic day for the principle of accountability'. It viewed it as international recognition of its right to seek legal redress for Israeli actions.
The International Criminal Court in The Hague, Netherlands. Two decades on, the court has handed down just five convictions for core crimes. Most of those were against African warlords. Picture: AP
The US, under the Biden administration at that point, strongly opposed the ICC investigation. Then US secretary of state Antony Blinken said: 'We firmly oppose and are deeply disappointed by the ICC prosecutor's announcement.' Washington took the opportunity to reaffirm its support for Israel's right to 'self-defence' and echoed concerns over jurisdiction.
So, although president Biden had lifted Trump-era sanctions on the ICC, the administration remained hostile to this investigation.
In Europe, reactions ranged from the technical (Germany and Hungary opposed on jurisdictional grounds) to tentative support (France and Belgium respected the court's independence, even if they had concerns).
It is important to note that the 2021 investigation pre-dated October 2023 by over two years, and while no arrest warrants were issued at that point, it marked a turning point in international law regarding how Israel would be treated in its ongoing occupation of Palestine, and its military operations therin.
In essence, the reactions in 2021were just an appetiser for those that followed the May 2024 decision that 'there were reasonable grounds' to believe Netanyahu, Gallant, and several Hamas officials had committed international crimes since October 7. On that basis, the court issued arrest warrants for Netanyahu, Gallant, and Hamas commander Mohammed Deif (later withdrawn after reports of his death).
Israel, if it were so inclined to take heed, had been warned by the ICC in 2021. It ploughed on regardless.
Today, in August 2025, Netanyahu isn't in a holding cell. Neither is Vladimir Putin, who had his own ICC warrant slapped on his name last year.
Sudan's Omar al-Bashir evaded capture for over a decade despite indictments and a passport that read like a serial offender's travel diary. The ICC shouts into the void, and the void responds with billions of dollars of military aid and state dinners.
So what went wrong? Or perhaps more honestly, was it ever really right?
The roots of these courts are noble, born from the most ignoble chapters of human history. After the unthinkable horrors of the Holocaust, the international community collectively said 'never again'.
The Nuremberg Trials in 1945 introduced the novel idea that even heads of state could be held accountable. The precedent gave rise to the ICJ in 1945, the UN's 'principal judicial organ', meant to settle disputes between countries. Think of it as marriage counselling for nations with nuclear weapons.
Then, in 2002, came the ICC — a separate body entirely. Born of the Rome Statute, it was designed to prosecute individuals for four core crimes: genocide, crimes against humanity, war crimes, and the elusive crime of aggression, which sounds like something out of a philosophy exam paper.
The ICC was supposed to be the last line of defence for victims when national courts were unwilling or unable to act. A legal lighthouse amid stormy seas.
But there were always caveats. Big ones. The US, China, and Russia never ratified the Rome Statute. Israel signed it but later 'unsigned' it — an act that should be impossible, but like many things in geopolitics, defies logic. Without these major players on board, the ICC became a court with jurisdiction over everyone except the people most likely to ignore it.
So, how is the ICC doing two decades on? It has handed down just five convictions for core crimes. Most of those were against African warlords.
Critics have long accused the court of selective justice, a phrase that sounds like something from a dystopian menu: 'Would you like your international law with or without hypocrisy?'
Emergency services personnel work to extinguish a fire following a Russian attack in the Kharkiv region of Ukraine. Picture: Ukrainian Emergency Service via AP
Meanwhile, the ICJ, for its part, has presided over more than 180 disputes, many of them relating to maritime boundaries. It has done admirable work in the dry, academic realm of state-to-state conflict resolution.
But unlike the ICC, the ICJ can't issue arrest warrants or hold individuals responsible. It depends on voluntary compliance. That's a bit like having a referee at a boxing match who can only politely ask you to stop punching.
Despite their apparent impotence, there is an argument that if neither court existed, you'd invent them both tomorrow.
'Both the ICJ and ICC have major political impact, that perhaps supersedes any ability it lacks to follow through on arrest warrants,' argues Maryam Jamshidi, an associate professor of law at the University of Colorado Law School.
'The legal arguments the ICJ and ICC are making remain the most effective way to shut down any discussion that what Israel is doing is anything other than war crimes.'
There is huge symbolism, too, in those who are bringing the cases to the courts, and those who are rejecting them.
'The construct of contemporary international law is, in and of itself, very much a product of the West and Western interests. But over time, especially since decolonisation after the Second World War, the Global South has asserted its role and place in holding actors accountable.
'This moment — with Israel's crimes in Palestine front and centre — is a moment that the Global South is shaping. It is holding a mirror to the West. How we think about genocide, how we think about occupation and colonisation. That is incredibly important. If international law is to have a future, the Global South needs to continue to lead the way, because the Global South understands better than anyone.'
Last year, ICC chief prosecutor Karim Khan requested arrest warrants for Israel's prime minister Benjamin Netanyahu and defence minister Yoav Gallant. Picture: AP
So here we are. Two international courts, plenty of legal muscle on paper, but little in the way of teeth when it comes to the powerful. They can indict. They can admonish. But increasingly, they cannot compel.
'Yes,' Jamshidi agrees, 'but the courts are a critical weapon in a wider ideological war. They use sound legal arguments to shape the narrative and apply political pressure. The most significant aspect of the ICC warrants for Netanyahu and Gallant was that they were the first issued for 'Western' leaders. That's not nothing.'
Power has shifted. The UN Security Council, still stuck in 1945 with its five permanent members, can't agree on lunch, never mind accountability. Multipolarity has returned, and with it, a jostling of narratives. Everyone's got a skeleton to show, and no one wants to open the closet.
And yet, the need for justice hasn't disappeared. If anything, it's more acute. In Gaza, in Sudan, in Ukraine, in Myanmar, real people continue to pay the price for the hubris and avarice of their leaders. The legal frameworks exist. The moral arguments are clear. But the enforcement mechanisms are laughably absent.
What's next?
So what comes next? Some argue for regional courts — African, Asian, or European criminal tribunals, more culturally and politically embedded, less burdened by the Global North-South mistrust. Others speak of truth and reconciliation commissions, like those pioneered in South Africa, which trade prosecution for collective healing.
There's also the tech-utopian fantasy: AI-driven evidence collection, blockchain-protected war crime registries, crowdsourced justice via global citizen tribunals. But these ideas, while shiny, are fraught with their own dangers and easily co-opted.
Realistically, what we may see is a shift toward informal legitimacy over formal legality.
Sanctions, visa bans, public shaming, asset freezes — none of these are justice in the Nuremberg sense, but they may be the closest we get in a world where power trumps process.
Perhaps, too, we must rethink what justice looks like. Less about punishment, more about prevention. Less about dragging leaders to The Hague, more about making it politically impossible for them to commit atrocities in the first place. That's a long road. It involves education, diplomacy, and strengthening domestic institutions. But then, so did the building of these courts.
What, then, will we teach our children? There's a bench in The Hague. It sits silently beneath a row of flags and beside the empty dock where tyrants are supposed to face their reckoning. Today, it feels like theatre — well-meaning theatre, perhaps, but theatre all the same. A performance of justice rather than its practice.
And yet, something nags at the conscience. That small, stubborn belief that laws matter. That truth has weight. That even in an age of polarisation and propaganda, the idea of accountability shouldn't die so easily.
Maybe the ICC is failing. Maybe the ICJ is ignored. But the alternative isn't attractive, and perhaps, as Jamshidi argues, the symbolism of its rulings and the discomfort those rulings impart outweigh the futility of its warrants.