In a significant development and following the International Court of Justice’s (ICJ) preliminary findings on the plausibility of genocide in Gaza, on 24 November 2024, the Pre-Trial Chamber I of the International Criminal Court (ICC) issued arrest warrants regarding the Situation in the State of Palestine. The warrants were issued for Benjamin Netanyahu and Yoav Gallant for crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024, when the application for arrest was filed. This decision presents an opportunity to address accountability and strengthen compliance with international humanitarian law. Key recommendations include imposing sanctions, utilizing domestic law, and exploring alternative mechanisms to enhance enforcement of ICC arrest warrants.
In force since 2002, The Rome Statute established the ICC and defined four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. As of December 2024, 124 states are party to the treaty, which outlines the Court's jurisdiction, structure, and functions. The State of Palestine accepted the Court’s jurisdiction in 2014, while the United States and Israel remain non-parties. Nonetheless, the ICC has affirmed its jurisdiction over crimes in Gaza, the West Bank, and East Jerusalem based on Palestine's territorial jurisdiction, as upheld in a 2021 ruling. Under Articles 12(2)(a), 13(a), and 14 of the Statute, the Court may exercise jurisdiction over crimes committed on the territory of a State Party or upon referral by a State Party to the Prosecutor. The Statute further binds member states under Article 86 to cooperate with the ICC, and in the case of provisional arrest request, under Article 59, members are legally obligated to immediately take steps to arrest the person in question.
States universally recognize the binding nature of customary international law. While international humanitarian law is rooted in conventions, its norms have evolved into customary law, thereby obligating even non-signatory states. The negotiation of the Rome Statute, which established the ICC, was predicated on the principle that a war crime must constitute a violation of customary international law. This principle is exemplified by UN resolutions condemning Israel's ‘continuous grave breaches’ of the Geneva Conventions and Additional Protocol I as war crimes. As many states, including Israel, had not ratified Additional Protocol I at the time, this condemnation was based on the understanding that these breaches constituted violations of customary international law. While customary international law obligates states to prosecute or extradite individuals for grave breaches, the specific obligations outlined in Additional Protocol I and the Second Protocol to the Hague Convention are only binding on states that have ratified these treaties. The United States has not ratified these 1977 Additional Protocols which limits its capacity to implement the arrest warrants.
The ICC further found that during October 2023- November 2024, international humanitarian law applied to the conflict (genocide). This determination is based on the fact that both parties are High Contracting Parties to the Geneva Conventions and that Israel occupies parts of Palestinian territory. Additionally, the Court has found that the law of non-international armed conflict applies to the fighting between Israel and Hamas. The Court also found that the alleged crimes against humanity were part of a widespread and systematic attack against the civilian population of Gaza. The United States, as a signatory to the Geneva Conventions, is obligated to uphold their principles.
While not a member of the ICC, the US has enacted domestic legislation, such as the War Crimes Act of 1996, to prosecute grave breaches of these Conventions. Specifically, Section (B) of the Act grants jurisdiction over war crimes committed by individuals present in the US, regardless of nationality. Furthermore, Section (A)(i) extends this jurisdiction to cases where the victim is a US citizen. The loss of American lives, including aid workers and civilians, since October 2023, coupled with the potential presence of Benjamin Netanyahu and Yoav Gallant in the US, provides a strong legal basis for the US government to implement the ICC's decision and arrest these individuals under this Act.
The Global Magnitsky Act empowers the executive branch to impose travel bans and targeted sanctions on individuals anywhere in the world responsible for committing human rights violations. Utilizing the Global Magnitsky Act, the US government should immediately implement targeted sanctions against Israeli officials named in the ICC arrest warrants.
The International Emergency Economic Powers Act (IEEPA) empowers the US President to impose sanctions on foreign individuals or entities that threaten international stability. In February 2024, Executive Order 14115, issued under IEEPA, designated ‘high levels of extremist settler violence’ in the West Bank as a threat to regional peace and security. While this represents a modest departure from the historical impunity afforded to Israeli nationals who perpetrate violence against Palestinians, it falls short of the comprehensive arms embargo advocated by the BDS movement. To ensure accountability for war crimes, the US should prioritize targeted sanctions on Israeli officials implicated in the ICC warrants, as well as a comprehensive arms embargo on Israel to curtail its capacity to commit human rights abuses and war crimes.
ASPA places specific restrictions on U.S. cooperation with the ICC, due to the U.S. concerns about the criminal prosecution of its armed forces. The law prohibits federal, state, and local governments from assisting the ICC in various ways, including surrendering individuals to the Court. However, ASPA provides exemptions under Dodd Amendment that allow ‘rendering assistance’ to the ICC if it aligns with U.S. national interests or involves cases related to ‘foreign nationals’ accused of ‘genocide, war crimes or crimes against humanity’. This exemption was recently expanded in 2023 to support investigations and prosecutions related to the ‘situation in Ukraine’, including support for victims and witnesses. The exemptions alongside such precedent can be applied to the case of Israel, enabling the US to cooperate with the ICC in bringing Israeli officials to justice.
To enhance the United States' capacity to address war crimes, Congress should consider ratifying the Rome Statute and incorporating Article 59 of the Statute into US domestic law. This would empower US authorities to arrest and surrender individuals suspected of war crimes, genocide, and crimes against humanity, regardless of their nationality or the location of the alleged crimes. While previous administrations have made efforts, although limited, to combat impunity for international crimes, the US remains isolated from key components of the international atrocities prevention framework.
The US should further ratify Additional Protocol II to the Geneva Conventions. This Protocol, which addresses the protection of victims of non-international armed conflicts, would strengthen US legal obligations and enhance its ability to respond to humanitarian crises. The US Senate should prioritize the ratification of this long-pending treaty.
To combat impunity for war crimes and to implement ICC’s arrest warrants, the United States must take decisive action. While the US has made some efforts to address international criminal justice, it remains isolated from key components of the international atrocities prevention framework, such as the Rome Statute. To rectify this, the US should adopt a comprehensive strategy that includes the following key recommendations:
Imposing Sanctions: The US should utilize multilateral and unilateral sanctions both against Israel and specifically against individuals indicted by the ICC.
Utilizing Domestic Law: The US should utilize its existing laws, and strengthen its domestic legal framework to enhance cooperation with the ICC, including by incorporating relevant provisions of the Rome Statute into US law.
Exploring Alternative Mechanisms: The international community should consider supporting the establishment of ad hoc tribunals to complement the ICC's efforts in addressing Israeli genocide.
By implementing these recommendations, the US can play a more constructive role in the global effort to account for Israeli war crimes, combat impunity, and promote international justice.
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