Can Israeli Prime Minister Benjamin Netanyahu be put on trial?

In international law, alongside the responsibility of states, the concept of holding individuals who commit crimes on behalf of those states personally accountable and punishing them through an international court for the international crimes they have committed is quite new. The Nuremberg and Tokyo International Military Tribunals were first established after World War II to try German and Japanese war criminals following the defeat of those states. However, these were temporary, ad hoc international criminal courts.

In the history of world wars, the reluctance of states to try their own citizens in national courts for international crimes necessitated the establishment of a permanent international International Criminal Court. As a result of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court held in Rome from June 15 to July 17, 1998, the Rome Statute of the International Criminal Court was adopted by the international community for the first time, entering into force on July 1, 2002, and the International Criminal Court was established. This court has jurisdiction in the international arena over the crime of aggression, crimes against humanity, the crime of genocide, and war crimes. To date, the court has exercised its jurisdiction over Uganda, the Democratic Republic of the Congo, Sudan (Darfur Region), the Central African Republic, Kenya, Libya, Côte d'Ivoire, Mali, Georgia, Burundi, Bangladesh (Myanmar), Afghanistan, Palestine, and most recently, Russia.

As we know, on October 7, 2023, the Izz ad-Din al-Qassam Brigades, the armed wing of Hamas, launched a comprehensive attack on Israel dubbed "Operation Al-Aqsa Flood." Militants who entered Israel from various regions near the Gaza Strip killed and took hundreds of people hostage. The attack, carried out without any warning, was in fact a result of the conflict that has been ongoing for years between Israel and Palestine. Israeli Prime Minister Netanyahu stated in his address to the nation following the start of the attacks that Israel was "at war."

Following this, Israeli authorities decided on a 'total blockade' for Gaza, stating that electricity, food, and fuel supplies would be cut off. On the other hand, Israel launched attacks targeting civilians in the blockaded Gaza Strip. According to a statement from the Media Office of the government in the Gaza Strip, the number of people killed in Israeli attacks in Gaza since October 7 (as of 19.11.2023) has risen to 11,180, including 4,609 children and 3,100 women.

We see that Israeli soldiers are carrying out attacks against civilians in Palestinian territories that could constitute genocide and war crimes. However, we know that Israeli soldiers carry out these acts upon the orders of high-ranking state officials or commanders, primarily Israeli Prime Minister Netanyahu. In this context, the question “Can Israeli Prime Minister Netanyahu be put on trial?” has come to the agenda.

War crimes are among the international crimes over which the International Criminal Court (ICC) has jurisdiction. According to Article 8, paragraph 1 of the Rome Statute of the International Criminal Court, which has been in force since 2002, it is stipulated that “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” International crimes other than war crimes include crimes against humanity, the crime of genocide, and the crime of aggression. Considering Israel's actions, it is clear that other crimes will also fall within the scope of prosecution.

Palestine is a signatory to the Rome Statute, which accepts the jurisdiction of the ICC and possesses external sovereignty due to its representation in numerous international organizations. However, there were long-standing debates regarding whether the ICC has jurisdiction in Palestine. This is because Palestine has the status of a non-member observer state at the United Nations. Israel objected to the court's initiative regarding Palestine, citing this as a reason. It argued that the court could only examine issues brought forward by sovereign states. In contrast, it was decided unanimously that Palestine is a "state party to the Rome Statute" upon which the court is based.

Therefore, there is no doubt that the ICC has jurisdiction regarding international crimes committed in Palestine. Israeli soldiers have bombed hospitals, schools, mosques, churches, and refugee camps, and as a result, thousands of civilians have lost their lives. Thus, genocide (Art. 6), crimes against humanity (Art. 7), and war crimes (Art. 8) as specified in the Rome Statute have been committed.

Due to the international crimes committed by Israeli soldiers, high-level Israeli officials and commanders, primarily Prime Minister Netanyahu, can be tried at the ICC under Article 28/1 of the Rome Statute. According to the article in question, a military commander or person can be held responsible for all crimes committed if they knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes (28/1).

Furthermore, ICC Prosecutor Karim Khan states that the obstruction of humanitarian aid to the people of Gaza could also constitute a war crime within the jurisdiction of the International Criminal Court.

In addition, upon the application of many European states that are parties to the Rome Statute, the ICC decided to launch an investigation into acts committed by Russian soldiers in Ukraine and issued an arrest warrant for Putin immediately. It should do the same for Palestine and issue an arrest warrant for Prime Minister Netanyahu. As we stated at the beginning, this court is new. It performs a very important task in the international arena and ensures justice. For this reason, the permanence of this court depends on the permanence of the belief that it can conduct effective trials in the international community. If the impression is formed in the international community that the ICC remains indifferent to murders and genocide occurring before the eyes of the entire world public, this court will cease to be an effective court. In summary, the permanence of the ICC depends on the measures it will take regarding the crimes that Israel has very clearly committed.

Finally, this point should also be mentioned. The unjust attack launched by the Izz ad-Din al-Qassam Brigades, the armed wing of Hamas, on October 7, 2023, is also unacceptable. It should be known that Hamas leader Ismail Haniyeh, high-level executives, and commanders can also be tried and punished at the ICC for these actions due to the more than 1,400 Israeli citizens killed, wounded, or taken hostage on that date.