Symposium on Prosecuting Heads of State for International Crimes: Prosecuting Netanyahu for International Crimes – Playing the Long Game

[Victor Kattan is an Assistant Professor in Public International Law at the University of Nottingham School of Law]

Benjamin Netanyahu, the Prime Minister of the State of Israel, is the first Western leader to have an international arrest warrant issued against him from the International Criminal Court (ICC). In fact, it is the first time any Western leader has ever had an arrest warrant issued against them for an international crime from any international criminal tribunal. Although Israel is not an ICC member, the Court has jurisdiction over crimes committed on the territory of the State of Palestine, of which Israel is the belligerent occupant, following Palestine’s accession to the ICC Statute in 2015. To date, the ICC has rejected all of Israel’s jurisdictional challenges. All that is missing is a warm body in the Hague. 

Apart from apprehending Netanyahu, any court seeking to prosecute him will first need to confront a more fundamental issue: who, exactly, is the man it wants in the dock? Long before a trial begins (if it ever does), the battle over narrative will already be underway. The crimes alleged in Gaza – and the West Bank – are collective, structural and systemic, extending far beyond any single individual. Yet there is probably no other person so closely identified with the State of Israel, its relationship with the U.S. government, and its suppression of Palestinian national aspirations than Benjamin “Bibi” Netanyahu. 

A U.S. Citizen in All but Name 

It should not have come as a surprise that the Trump Administration would robustly respond to the issuance of the arrest warrant against Netanyahu by sanctioning the Court, its prosecutor and its judges. The difficulties the ICC now faces stem directly from the close relationship that Israel’s Prime Minister has forged with successive U.S. administrations. For he is a U.S. citizen “in all but name.” Netanyahu has paid homage to President Trump more times than any other Western leader. He holds the record for delivering the most speeches to a joint session of the U.S. Congress by any “foreign” leader (1996, 2011, 2015, and 2024), surpassing British Prime Minister Winston Churchill. Netanyahu has long been a close friend of Charles Kushner, father of Trump’s son-in-law Jared Kushner. But his close relationship with the U.S. goes further back.

Netanyahu was born in Israel in 1949, but he spent much of his formative years in the U.S., where he obtained his primary and secondary education. Netanyahu’s mother’s family originally comes from Lithuania, with most of her extended family emigrating to the U.S. in the late nineteenth century, before she moved to Israel. Netanyahu’s father was a Professor of Judaic history at the University of Philadelphia and later at Cornell University where he was active in the Revisionist Zionist movement. After his obligatory military service in Israel, Netanyahu studied architecture, business, and management at the Massachusetts Institute of Technology in Boston. Although Netanyahu currently does not have U.S. citizenship, it has been reported that he held it on at least two occasions before relinquishing it to take up official posts for the Israeli Government (which does not allow for dual citizenship). 

Israel’s Propagandist-in-chief 

Netanyahu spent several years working for the Boston Consulting Group, and gave public talks promoting Israel in public forums in the U.S. In this revealing video of his 1978 debate with Fouad Ajami, for instance, he opposes the creation of a Palestinian State, a view that he has never abandoned. Netanyahu was later appointed a diplomat at Israel’s embassy in Washington DC, becoming well-known in the U.S. for defending Israel’s invasion of Lebanon in 1982, which has many parallels to Israel’s devastating assault on Gaza. Netanyahu defended Israel’s large-scale bombardment and siege of Beirut in 1982, which saw the evacuation of PLO forces, when American and French peacekeeping forces were sent to the city. This PR “playbook” seems to be one that Netanyahu attempted to emulate in Gaza, though less successfully. In the 1980s, Netanyahu made regular appearances on cable television, forged close relations with U.S. politicians and captains of industry, and authored leading newspaper columns. Between 1984 and 1988, Netanyahu was appointed Israel’s UN representative in New York City. The relationships he forged during those years explains much of his success today in the international media, especially in the U.S. 

 “Mr. Security”

After his service as Israel’s Ambassador, Netanyahu returned to Israel where he was elected with the Likud Knesset list. Consistent with his neoconservative outlook and revisionist Zionist roots, Netanyahu portrays Palestinians as part of a wider Arab nation already represented by twenty-two Arab States, leaving no justification for the creation of another one. He frequently framed Palestinians through the lens of security, often conflating them with terrorism, from bin Laden to ISIS and Iran’s ayatollahs. Netanyahu was first elected Prime Minister of Israel in 1996, where he campaigned assiduously against the “land for peace” formula that was ushered in by the Oslo peace process. His first term ended in 1999, when Labour’s Ehud Barak and PLO leader Yasser Arafat came close to negotiating a final status agreement. From the opposition, Netanyahu opposed Ariel Sharon’s disengagement from Gaza in 2005, and the withdrawal of settlers. He was re-elected Israel’s Prime Minister in 2009. 

Netanyahu has been Prime Minister ever since, overseeing attacks on Gaza in 2012, 2014, 2018, 2021 and since 2023. He is Israel’s longest serving Prime Minister. But his term has also been mired by serious allegations of corruption. He has even asked Israel’s President, Isaac Herzog, for a pardon over the corruption trials he faces. Nor is his record in Gaza unblemished: in order to divide the Palestinian national movement, he encouraged the divisions between Fatah and Hamas and even approved large-scale transfers of Qatari cash to Hamas. His long-term aim has always been to do everything in his power to prevent the creation of an independent Palestinian State.  

Netanyahu the International Fugitive 

Despite his determination to maintain his public image as “Mr Security” by fighting simultaneous wars in Gaza, Lebanon and Iran, Netanyahu remains an international fugitive on the run from the ICC for allegations of the most serious international crimes. After being Israel’s chief propagandist, he is now the Chief Commander as the chairman of the State security cabinet that oversees the war in Gaza and elsewhere. As things stand, Netanyahu is formally wanted by the ICC Prosecutors for the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution and other inhumane acts. The ICC Chamber also found reasonable grounds to believe that Netanyahu bears superior criminal responsibility for the war crime of intentionally directing an attack against the civilian population.

The UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, found that Netanyahu’s language, ideology and leadership have contributed to the normalization of dehumanizing rhetoric, including incitement to genocide, which has laid the groundwork for Israel’s military campaign in Gaza. While the Chamber did not include the crime of genocide in its arrest warrant, it found that:

“there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.” 

The warrant only covers the period from 8 October 2023 to 20 May 2024 and does not cover events that occurred afterward, including Netanyahu’s decision in April 2025 to extend the conflict and the Palestinians’ suffering, leading to famine in Gaza and global condemnation. Accordingly, it is highly likely that additional crimes may be added to the charge sheet, including extermination, and even torture, which has become systemic in Israeli prisons where Palestinians are detained.

The Question of Immunities 

Under Article 27 of the Rome Statute, personal immunities of sitting Heads of State or Government do not bar proceedings before the ICC. This also applies to horizontal relationships, i.e., the duty of State Parties to the Rome Statute to arrest and surrender another State’s leader to the ICC (Al-Bashir). Yet while political reactions to the arrest warrant against Russian President Putin emphatically rejected any claim of immunity, the response to the warrant for Netanyahu has been less consistent. Some of those same States, such as France, flirted with the argument, at least initially, that a serving Head of Government might enjoy personal immunity, despite the ICC’s settled jurisprudence to the contrary. 

Still, most States stopped openly defying their Rome Statute obligations. Rather than openly announcing they would refuse to arrest Netanyahu, many adopted the quieter approach of ensuring he does not set foot on their territory. Even Germany, a close ally of Israel, signalled caution by managing high-level contacts in ways that would avoid triggering a compliance test. A notable outlier has been Hungary, which refused to arrest Netanyahu and has since moved to withdraw from the Rome Statute (a step that does not affect existing proceedings). But is there any possibility for Netanyahu to be held accountable in Israel for his alleged crimes? The prospect of prosecution by Israeli courts is extremely remote, even in the event of a radical change of government. As mentioned, his legal problems at home concern allegations of corruption, not war crimes or crimes against humanity. We must then turn to the domestic courts of third States.

The world is becoming smaller 

Before domestic courts of non-State Parties to the Rome Statute, sitting Heads of State or Government traditionally enjoy “personal immunity” for their private and public acts before and during their terms of office, and “functional immunity” for their public acts after they leave office. This means that after leaving office, Netanyahu would still have functional immunity from third-party jurisdiction. But recent developments are witnessing a sea of change in this area of law. The International Law Commission has pointed to an emerging exception to immunity for certain international crimes, namely genocide, crimes against humanity and war crimes (Annex III Article 7 of the Draft Articles on Immunity). 

In these situations, Netanyahu’s claim for functional immunity for such crimes from domestic courts might not be recognized, though he would have to travel to one of these countries to face arrest, since most States do not provide for trials in absentia. Still, this development is extremely significant. Netanyahu could conceivably face prosecution in any domestic court in the world that provides jurisdiction for the prosecution of such crimes. Once he is no longer in public office, Netanyahu will find his world very small indeed. He will also be conscious that his political enemies at home (who are many) could surrender him to the ICC.

Playing the Long Game

Netanyahu is acutely aware that to avoid prosecution his best bet is to stay in power – for as long as possible. The current conflicts in the Middle East serve Netanyahu’s interests as he can portray himself as an embattled leader defending the nation. In his first press conference since the Iran war began, Netanyahu called for an end to his corruption trial and refused to condemn President Trump’s attacks on Herzog for not acceding to his request for a pardon. Netanyahu said that he needs to focus fully on the war and regional diplomacy. The ICC needs to play the long game. Neither Netanyahu (nor President Trump) will be in office (or alive) forever. There is no statute of limitations for international crimes. 

Change is underfoot in the U.S., not just within the Democratic Party, but also in MAGA. The shocking levels of violence in Gaza are causing a rupture amongst American nationalists and progressives who are increasingly questioning American unconditional support for Israel, and Trump’s decision to join Netanyahu in attacking Iran. The million-dollar question is whether the ICC as an institution will outlast Trump and Netanyahu. So long as ICC member States continue to support the Court and protect the hundreds of staff members who work there in the most arduous of conditions, there is no reason to think that the international criminal justice project is dead, just yet.