The International Criminal Court Amid Global Power Conflicts: The Case of Netanyahu and the United States
By
Yayasan pendidikan Indonesia -Special Consultative Status with ECOSOC- United Nations since 2013
Important Note.
Imagine an international court bold enough to issue arrest warrants against the Prime Minister of Israel, Benjamin Netanyahu. Then imagine the United States under Donald Trump responding with severe sanctions and even announcing a campaign to “dismantle” the institution “brick by brick.” This is the global drama currently unfolding between the International Criminal Court (ICC) and the Trump administration.
The International Criminal Court (ICC) is a permanent international criminal tribunal established under the Rome Statute of 1998 to prosecute individuals for the most serious crimes under international law: genocide, crimes against humanity, war crimes, and the crime of aggression.
This article critically examines recent developments concerning the arrest warrants issued against Israeli Prime Minister Benjamin Netanyahu, the response of the United States under President Donald Trump, and the procedural framework of the ICC. Drawing on empirical data from official ICC decisions, principles of jurisdiction, and institutional practice, the article situates this conflict within the broader tension between international justice and state sovereignty.
Institutional Background of the ICC
The International Criminal Court (ICC) is the world’s first permanent international criminal court, established to end the culture of impunity for the most serious crimes of concern to the international community. Following protracted negotiations at the Rome Conference in 1998, the Rome Statute was adopted and entered into force on 1 July 2002. Since then, the Court has operated from its headquarters in The Hague, the Netherlands.
As of mid-2026, 125 States have become Parties to the Rome Statute. These include representatives from various regions: 33 African States, 28 Latin American and Caribbean States, 25 Western European and other States, 20 Eastern European States, and 19 Asia-Pacific States. Nevertheless, several major powers—including the United States, Russia, China, India, and Israel—remain outside the system.
The fundamental principle underpinning the ICC is complementarity (Article 17 of the Rome Statute). This principle affirms that the ICC is complementary to, and not a substitute for, national criminal justice systems. The Court may exercise jurisdiction only where the State possessing primary jurisdiction is unwilling or unable genuinely to carry out the investigation or prosecution. State sovereignty is thereby respected so long as the State performs its functions in good faith.
The Court’s jurisdiction is strictly circumscribed and may be exercised only under one of four principal conditions:
• the crime was committed on the territory of a State Party to the Rome Statute;
• the crime was committed by a national of a State Party;
• the United Nations Security Council refers the situation to the ICC pursuant to Chapter VII of the UN Charter; or
• a non-State Party voluntarily accepts the Court’s jurisdiction in respect of a particular situation by means of an ad hoc declaration under Article 12(3).
The United States and Israel are among the States that have consistently rejected ICC jurisdiction over their nationals. Neither has ratified the Rome Statute, and both contend that the Court may be used as an instrument of politicisation against their national interests.
Nevertheless, the history of the ICC demonstrates that non-States Parties are not entirely immune. Through the mechanism of Security Council referral, the Court has previously issued arrest warrants against heads of State of non-member countries. The most prominent example is Omar al-Bashir, former President of Sudan. Sudan was not a State Party to the Rome Statute. However, by Security Council Resolution 1593 (2005), the situation in Darfur was referred to the ICC. In 2009 and 2010, the Court issued two arrest warrants against al-Bashir for genocide, crimes against humanity, and war crimes. He remains at large and has never been surrendered to The Hague for trial.
A similar case arose with Muammar Gaddafi (Libya). Libya was likewise not a State Party. Pursuant to Security Council Resolution 1970 (2011), the situation in Libya was referred to the ICC, and an arrest warrant was issued against Gaddafi. Proceedings were terminated upon his death in 2011.
A more recent example is Vladimir Putin (Russia). Russia is not a State Party. Jurisdiction in that case is based on alleged crimes committed on the territory of Ukraine (which has accepted the Court’s jurisdiction). In March 2023, the ICC issued an arrest warrant against Putin for the war crime of unlawful deportation of Ukrainian children. Like al-Bashir, Putin has neither been arrested nor tried by the Court.
These examples reveal a clear pattern: the ICC is capable of opening investigations and issuing arrest warrants against heads of State of non-States Parties, particularly through Security Council referral or territorial jurisdiction. Effective enforcement of any resulting sentence, however, depends entirely upon the cooperation of States in arresting and surrendering suspects. Absent such cooperation, proceedings frequently remain at the pre-trial stage.
Thus, the ICC stands at the intersection of the aspiration for universal justice and the political reality of State sovereignty—a tension that has become increasingly apparent in contemporary cases, including those involving Israel and the United States.
The ICC Decision concerning Benjamin Netanyahu: Between Legal Legitimacy and Enforcement Reality
On 21 November 2024, Pre-Trial Chamber I of the International Criminal Court unanimously issued arrest warrants against Benjamin Netanyahu, Prime Minister of Israel, and Yoav Gallant, former Minister of Defence of Israel. This decision ranks among the most controversial in the Court’s history, marking the first occasion on which the ICC has targeted elected leaders of a democratic State closely allied with Western powers.
The Chamber found that there are reasonable grounds to believe that Netanyahu and Gallant are criminally responsible as co-perpetrators for a number of serious crimes allegedly committed in Gaza. The charges include:
• the war crime of using starvation as a method of warfare;
• the war crime of intentionally directing attacks against the civilian population; and
• crimes against humanity of murder, persecution, and other inhumane acts.
The period covered by the allegations is at least from 8 October 2023 to 20 May 2024, the date on which the Office of the Prosecutor filed the applications for the warrants. The Chamber further found sufficient grounds to conclude that both individuals bore responsibility in their capacity as civilian superiors.
Jurisdiction is grounded in the Situation in the State of Palestine. The ICC had previously determined that the territory of Palestine falls within its territorial jurisdiction. Israel has categorically rejected the entire process, arguing that it is not a Party to the Rome Statute and has never accepted the Court’s jurisdiction over its nationals or over acts committed in territory it claims.
Behind the formal legitimacy of the decision, however, lies a deeper question concerning the effectiveness of international law enforcement. In practice, ICC arrest warrants are frequently treated as of little practical consequence. This is due primarily to the Court’s absolute dependence upon the cooperation of States Parties to the Rome Statute. Although Articles 86 and 89 of the Statute impose a full duty of cooperation upon States Parties—including the obligation to arrest and surrender persons subject to warrants when present on their territory—implementation remains contingent upon the political will of each State.
Many States Parties that in principle support the ICC have displayed ambivalence when confronted with leaders of allied or strategically important States. Visits by Netanyahu to certain States Parties following the issuance of the warrants have not consistently been accompanied by efforts at arrest. Such uncertainty and inconsistency among States Parties further erode the Court’s practical authority. Consequently, decisions that are legally binding often remain purely symbolic, unaccompanied by effective enforcement mechanisms.
This phenomenon reflects a structural tension inherent in the architecture of the Rome Statute: on the one hand, the ICC possesses a universal mandate to ensure accountability; on the other, its success depends almost entirely upon the political support of sovereign States. When such support is selective or subordinated to geopolitical considerations, ICC decisions—however robust their legal foundation—risk becoming formal documents difficult to translate into reality, much like certain United Nations resolutions.
The United States Response and the Trump Administration: A Strategic Lesson for the ICC and Its States Parties
The response of the United States under President Donald Trump to the ICC’s actions, particularly the arrest warrants against Benjamin Netanyahu, constitutes one of the most overt confrontations between a major world power and an international criminal justice institution. Going beyond mere diplomatic rejection, the response evolved into a systematic policy aimed at weakening the operational capacity of the ICC itself.
On 6 February 2025, President Trump signed Executive Order 14203 formally imposing sanctions on ICC officials. These sanctions include the freezing of assets and travel bans to the United States against individuals involved in investigations or prosecutions of United States nationals or nationals of its allies, including Israel. This measure continues the hard-line approach previously adopted during his first term in relation to the Afghanistan investigation.
Escalation became still clearer in July 2026. Secretary of State Marco Rubio announced a whole-of-government campaign designed systematically to undermine the ICC’s operational capabilities. The campaign involves not only additional sanctions but also diplomatic pressure on other States to reduce their support for the Court. In a statement at Camp David on 31 July 2026, Trump openly affirmed that there was no information indicating that the ICC was pursuing him personally. He emphasised that the administration’s efforts were directed primarily at protecting Netanyahu (“Bibi”) and certain other individuals whom it considered should not be targets.
It must be underscored that, as of July 2026, there is no active investigation or arrest warrant against Donald Trump personally. The investigation in the Situation in Afghanistan, which had previously encompassed alleged violations by United States personnel, has been deprioritised by the Office of the Prosecutor in favour of a focus on Taliban and ISKP actors. The concerns expressed by the United States administration are therefore preventive and political in nature, rather than a response to any concrete legal process directed against Trump.
More than a mere conflict between Washington and The Hague, the United States response constitutes a serious lesson for the ICC and all its States Parties. First, it demonstrates the vulnerability of the ICC to pressure from non-States Parties possessing significant global influence. Where an international judicial institution depends heavily upon the cooperation of sovereign States, systematic rejection by a major power can substantially impair its effectiveness.
Second, the Trump reaction recalls that perceptions of selectivity and politicisation remain a structural weakness of the ICC in the eyes of certain States. When the Court is perceived as disproportionately targeting Western allies, the response is not merely legal rejection but active efforts to delegitimise and weaken the institution.
Third, the case illustrates that formal support by States Parties to the Rome Statute does not necessarily translate into practical commitment when geopolitical and strategic interests are engaged. Many States Parties that normatively support the ICC adopt a cautious or ambivalent stance when required to fulfil cooperation obligations in respect of individuals protected by major powers.
Accordingly, the response of the Trump administration is not merely a political episode. It is a concrete reflection of the limitations of the contemporary architecture of international law. For the ICC and its States Parties, this experience should serve as a moment for reflection on how to preserve independence, credibility, and effective enforcement amid a global political reality dominated by competing interests.
Without improvements in legitimacy, consistency, and stronger support mechanisms from States Parties, ICC decisions risk continuing to be treated as symbolic instruments readily disregarded by those possessing the power to defy them.
Proceedings before the ICC: Between Legal Hierarchy and the Aspiration for Broader Access to Justice
Proceedings before the International Criminal Court are structured hierarchically, rigorously, and depend heavily upon the initiative of the Office of the Prosecutor (OTP). Unlike many national justice systems that permit individuals or organisations to institute proceedings directly, the ICC operates under a model of public prosecution controlled by an international prosecutor. This model is intended to safeguard objectivity, prevent excessive politicisation, and ensure that only cases meeting the thresholds of jurisdiction, admissibility, and the interests of justice proceed.
In outline, the stages of proceedings before the ICC are as follows:
1. Receipt of Information. Information concerning alleged crimes may originate from various sources: States Parties to the Rome Statute, the United Nations Security Council, international organisations, or other sources including individuals, victims, and non-governmental organisations. At this stage, the OTP is not yet bound to open a formal investigation.
2. Preliminary Examination. The OTP conducts a thorough assessment of three principal matters: whether the Court has jurisdiction (material, temporal, and personal/territorial); whether the case is admissible under the principle of complementarity (whether the relevant State is unwilling or unable genuinely to prosecute); and whether prosecution would serve the interests of justice. This stage may last for years and is discretionary in nature.
3. Investigation. Where the OTP decides to proceed proprio motu (on its own initiative), authorisation from the Pre-Trial Chamber is required pursuant to Article 15 of the Rome Statute. Once authorised, the OTP is empowered to collect evidence, examine witnesses, and conduct field investigations (subject to the cooperation of the States concerned).
4. Application for a Warrant of Arrest or Summons to Appear. Where sufficient grounds exist, the OTP applies to the Pre-Trial Chamber for the issuance of a warrant of arrest or a summons to appear.
5. Confirmation of Charges, Trial, and Appeals. Once a suspect is in ICC custody or appears voluntarily, a confirmation of charges hearing is held. If the charges are confirmed, the case proceeds to trial before a Trial Chamber, with the possibility of appeal to the Appeals Chamber.
States Parties to the Rome Statute are under a legal obligation of full cooperation (Article 86), including the duty to arrest and surrender persons subject to warrants when present on their territory (Article 89). Failure to fulfil this obligation may result in a finding of non-cooperation by the Court.
The Role of Private Parties under the Current System
Under the applicable Rules of Procedure and Evidence of the ICC, private parties—whether individuals, victims, or organisations—do not possess standing to file formal complaints or to compel the initiation of proceedings. There is no mechanism of actio popularis or private prosecution of the kind known in certain national legal systems. Their role is limited to the submission of communications (information or reports) to the OTP under Article 15 of the Rome Statute. Such information is catalytic: it may prompt the OTP to open a preliminary examination, but the final decision rests exclusively with the Prosecutor, subject to judicial oversight at certain stages.
Reform Proposal: The Submission of the Indonesian Education Foundation
In light of these limitations on access, the Indonesian Education Foundation proposes that the ICC open broader avenues for private parties—both organisations and individuals—to participate more substantively in proceedings before the Court. This proposal stems from the recognition that national enforcement of the law frequently fails, particularly in cases involving grave human rights violations, mega-corruption, and abuse of power by public officials.
By granting more meaningful standing to civil society and individuals, the ICC could become a more readily accessible last resort for the international community. Where national justice systems are paralysed by political interests, elite impunity, or institutional weakness, citizens and civil society organisations would no longer depend entirely upon the will of States or the discretion of the international prosecutor. The proposal is not intended to transform the ICC into an ordinary court open to all forms of dispute, but rather to strengthen the complementarity function in a substantive sense: to make the ICC a more responsive safety net when national justice is genuinely obstructed.
Such an idea would of course require careful consideration of jurisdictional limits, case-filtering mechanisms, and safeguards against potential abuse. Nevertheless, amid criticisms of selectivity and dependence upon the political will of States, the proposal to expand private-party access merits inclusion in future discourse on the reform of international criminal procedure. In this way, the ICC would not only remain formally robust but would also draw closer to the aspiration for justice experienced by the wider public.
Analysis and Broader Implications
The conflict between the ICC, the Trump administration, and the Netanyahu case reflects a structural tension long embedded between the post-Second World War project of international law and the contemporary realities of power politics. On one side, the ICC seeks to uphold the principle of universal accountability—that no one, including a head of State or elected leader, stands above the law when committing the most serious crimes. On the other, major non-States Parties such as the United States and Israel consistently reject the subordination of their sovereignty to an institution they have not ratified. This rejection is not merely normative; it is given concrete expression through sanctions, diplomatic pressure, and systematic efforts to weaken the Court’s operations.
As illustrated by the Trump administration’s response through Executive Order 14203 and the whole-of-government campaign announced by Marco Rubio, political pressure from influential non-States Parties can materially constrain the ICC’s room for manoeuvre. Similar experience occurred in the Afghanistan investigation. The long-term effectiveness of efforts to “dismantle” the ICC remains an open question. The support of the majority of States Parties and the normative legitimacy the Court enjoys among global civil society continue to constitute important resources that cannot be entirely disregarded.
This tension becomes still clearer when compared with enforcement practice in various States. The arrest warrants against Netanyahu have thus far been treated by a number of States Parties largely as of little practical effect, with geopolitical considerations and bilateral relations taking precedence over cooperation obligations under the Rome Statute. By contrast, the case of Rodrigo Duterte in the Philippines offers a different and highly instructive example.
On 11 March 2025, Philippine authorities arrested former President Rodrigo Duterte pursuant to an ICC arrest warrant for alleged crimes against humanity consisting of murder in the context of the “war on drugs.” The following day he was surrendered to ICC custody in The Hague. The arrest occurred on Philippine sovereign territory amid intensifying political competition between the camp of President Ferdinand “Bongbong” Marcos Jr. and that of Vice-President Sara Duterte and her family and supporters.
Although the Philippines withdrew from the Rome Statute in 2019, the ICC retained jurisdiction over crimes committed during the period of membership. The decision of the Marcos government to cooperate—despite earlier statements of rejection—demonstrates that domestic political dynamics can be decisive in the implementation of international obligations.
The Duterte case is one of the few instances in which a former head of State has been successfully arrested and surrendered to the ICC by his own State (following the Laurent Gbagbo case in Côte d’Ivoire). It shows that when internal political interests align with international obligations, ICC enforcement can be effective. Conversely, when geopolitical interests or strategic alliances intervene, as in the Netanyahu case and the threat of United States sanctions, ICC decisions tend to lose practical coercive force.
The broader implications of these events are of great importance for the future of international criminal law. First, the ICC’s near-absolute dependence upon the cooperation of sovereign States renders it vulnerable to short-term political calculations. Second, the experience of systematic pressure from the Trump administration should serve as a lesson for the ICC and all its States Parties: formal legitimacy alone is insufficient without consistent political support and more robust enforcement mechanisms. Third, the limited access of private parties to the proceedings—discussed above—further underscores the gap between the aspiration for universal justice and institutional reality.
Ultimately, the ICC–Trump–Netanyahu conflict, and its contrast with the Duterte case, reminds us that international law does not operate in a vacuum. It continually interacts with power, national interests, and domestic political dynamics. The success or failure of the ICC in the future will be determined largely by its capacity to navigate these tensions without sacrificing its credibility and independence.
Conclusion
The ICC decision concerning Benjamin Netanyahu constitutes an important precedent in the Court’s history, being the first to involve an elected leader of a democratic State possessing a strategic alliance with the United States. Meanwhile, the absence of any personal legal process against Donald Trump to date underscores the practical and political limits of ICC jurisdiction. The entire sequence of events—from arrest warrants frequently treated as of little effect, through the confrontational response of the Trump administration, the absolute dependence upon State cooperation, to the contrast with the arrest of Rodrigo Duterte in the Philippines—affirms a fundamental reality: international criminal law continues to operate within a sharp tension between the aspiration for universal justice and the reality of sovereign State power.
Amid this tension, the structural weaknesses of the ICC have become increasingly apparent, particularly in its Rules of Procedure and Evidence, which still preclude active participation by private parties. This limitation leaves the Court overly dependent upon the political will of States and the discretion of the Prosecutor. Consequently, when national justice systems stall—whether because of grave human rights violations, mega-corruption, or abuse of power—the international community lacks an adequate channel through which to demand accountability.
It is therefore timely for the Rules of Procedure and Evidence of the ICC to be reformed so as to open more meaningful space for the active participation of private parties, both individuals and organisations. This proposal is consistent with the position advanced by the Indonesian Education Foundation in its capacity as an organisation holding Special Consultative Status with the Economic and Social Council (ECOSOC) of the United Nations. By according more substantive standing to civil society, the ICC can strengthen its function as a last-resort safety net when national justice systems fail to perform their role. Such a step would not only enhance access to justice but would also reinforce the legitimacy and relevance of the ICC in the eyes of the global public.
Ultimately, the future of the ICC will be determined not solely by the strength of the decisions it renders, but by its capacity to adapt so as to remain meaningful amid the dynamics of global power. Actively involving private parties in the proceedings is one concrete step in that direction—so that the Court may become not merely a symbol of justice, but a living and effective instrument for the enforcement of international law.
References
1. Amnesty International. (2025, March 26). What do the Trump administration’s sanctions on the ICC mean for justice and human rights? https://www.amnestyusa.org/blog/what-do-the-trump-administrations-sanctions-on-the-icc-mean-for-justice-and-human-rights/
2. Brookings Institution. (2025, April 1). Why did the Philippines turn over its former president to the ICC? https://www.brookings.edu/articles/why-did-the-philippines-turn-over-its-former-president-to-the-icc/
3. Coalition for the International Criminal Court. (n.d.). How to file a communication to the ICC Prosecutor. https://coalitionfortheicc.org/how-file-communication-icc-prosecutor
4. Human Rights Watch. (2025, February 12). World responds to Trump’s targeting of International Criminal Court. https://www.hrw.org/news/2025/02/12/world-responds-trumps-targeting-international-criminal-court
5. International Criminal Court. (2024, November 21). Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant. https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges
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10. Just Security. (2026, July 14). What does the Trump Administration statement on dismantling the ICC mean? https://www.justsecurity.org/147012/trump-administration-statement-dismantling-icc/
11. Reuters. (2026, July 31). Trump says ICC campaign aimed at defending Netanyahu, not himself. https://www.reuters.com/world/trump-says-icc-campaign-aimed-defending-netanyahu-not-himself-2026-07-31/
12. Rome Statute of the International Criminal Court. (1998). United Nations Treaty Series.
13. The White House. (2025, February 6). Imposing sanctions on the International Criminal Court (Executive Order 14203). https://www.whitehouse.gov/presidential-actions/2025/02/imposing-sanctions-on-the-international-criminal-court/
14. Time. (2026, July 14). Trump administration vows to dismantle the International Criminal Court. https://time.com/article/2026/07/14/international-criminal-court-icc-trump-rubio-state-department/
15. United Nations. (2024, November 21). ICC issues arrest warrants for Netanyahu, Gallant and Hamas commander. https://news.un.org/en/story/2024/11/1157286
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