It was unsurprising that Benjamin Netanyahu praised Viktor Orbán’s “bold and principled” stand, in response to Hungary’s announcement yesterday that it will leave the international criminal court (ICC). More dismaying is that too few governments seem ready to stand up against impunity at a time when, because of Donald Trump, the very existence of the Hague court is under threat.
Hungary’s leader described the ICC as “a political forum”; the Israeli prime minister, during his defiant visit to Budapest this week, complained of a “corrupt organisation”. That is all logical enough. Four months ago, the court confirmed an arrest warrant for Netanyahu for alleged war crimes and crimes against humanity. He could hardly be expected to praise his own indictment.
But other European governments also seem ready to play the role of “Orbán-lite” when it comes to Gaza. They have praised the warrants for Vladimir Putin and his associates in the past two years, but recoil from acting on a similar warrant for Netanyahu. Trump, meanwhile, announced sanctions against those who dare to cooperate with the court.
Germany’s Green foreign minister, Annalena Baerbock, has been an almost lone voice in describing Netanyahu’s visit to Hungary as “a bad day” for international law. Her colleague, the then chancellor Olaf Scholz, repeated that he “cannot imagine” Netanyahu being arrested in Germany. The incoming chancellor, Friedrich Merz, has said it would be “completely absurd” for Netanyahu not to be able to visit Berlin. France, traditionally a strong supporter of the ICC, has argued that Netanyahu might enjoy immunity – despite earlier praising the Putin warrant as a welcome reminder that “no one should escape justice”. Downing Street slapped down the foreign secretary, David Lammy, for echoing the ICC in asserting breaches of international law.
And yet, as ICC chief prosecutor Karim Khan points out, perceived unequal approaches are one of the biggest dangers for international justice itself. When I met Khan in The Hague just after his requested warrant for Netanyahu (as well as for Hamas leaders for their “unconscionable” crimes), he quoted King Lear: “Robes and furr’d gowns hide all. Plate sin with gold, / And the strong lance of justice hurtless breaks.” Khan said he was determined to confront that problem.
Those who loathe the idea that political leaders with “furr’d gowns” and powerful connections might somehow be held accountable like to argue that Khan must be a biased prosecutor gone rogue. And yet, the ICC spent a decade chewing the issues over before giving a green light to an investigation. As revealed in the Guardian and the Israeli-Palestinian +972 Magazine last year, Netanyahu became “obsessed” with the court’s work. In one bizarre incident among many, Khan’s predecessor, Fatou Bensouda, was ambushed in a Manhattan hotel suite by the head of the Mossad. The one thing Israel didn’t do was launch credible investigations or prosecutions of alleged crimes, which, following the core principle of “complementarity”, would have spelled an end to ICC investigations.
Khan’s advisers included a former British chief military prosecutor, a former ICC judge, and a former senior Israeli ambassador who is also the former president of the Yugoslavia war crimes tribunal. A panel of judges spent six months examining Khan’s request before giving their unanimous approval (the Putin warrant, for comparison, took three weeks to confirm). In short: any politician who challenges the legitimacy of the Netanyahu warrant may be revealing more about their own biases than those of the prosecutor and his colleagues. To quote the Israeli daily Haaretz, the arrest warrant is “neither antisemitic nor a modern-day blood libel”, but a simple call for justice – important for Palestinians, for Israelis and the world.
In some ways, the ICC seems stronger than ever. Last month, former president of the Philippines Rodrigo Duterte was arrested at Manila airport and delivered to The Hague, in connection with the killing of thousands in his “war on drugs”. In 2023, Putin cancelled a trip to South Africa because of the arrest warrant against him. Even Netanyahu, despite all his bluster, took a longer route when he flew to meet Trump in Washington in February, fearing he might be arrested if he needed to touch down in Europe. The possibilities of international justice, in other words, have grown.
But that is not enough. The dangers posed by a vengeful and justice-hating Trump cannot be ignored. Last month, the president of the ICC called for the European Union not to “abandon the court and … the hope of the victims”. She demanded a more robust response to Trump’s sanctions. So far, there has been little sign of that. There is no shortage of issues, from tariffs to the war in Ukraine, where politicians are grappling with how to deal with the unhinged proposals that pour out of the White House almost daily. But confronting Trump’s attempts to destroy the rule of law worldwide cannot be just an optional add-on, once everything else has been dealt with. The events of this week need to be a wake-up call.
Robert H Jackson, US chief prosecutor at Nuremberg, said we cannot afford to ignore the gravest crimes, because “we cannot survive their being repeated”. That remains true today. If this court is allowed to fail now – “an idea whose time has come”, as Germany described it at the time of the court’s foundation – it will be impossible to replace. That has implications for the whole world.
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