Hungary 'expected to withdraw from ICC' during Netanyahu visit

According to reports, Hungary plans to withdraw from the International Criminal Court (ICC) during Israeli Prime Minister Benjamin Netanyahu's controversial visit this week. Israeli and Hungarian media have reported on this planned withdrawal, which follows the ICC's issuance of arrest warrants for Netanyahu, accusing him of war crimes in Gaza. This decision highlights the growing tension between some nations and the ICC's jurisdiction.

Hungary was one of the first countries to ratify the Rome Statute, which established the ICC in 2002. If Hungary withdraws, it will be the first EU country to leave the treaty. Article 127 of the Rome Statute stipulates that Hungary needs to issue a written notification to the Secretary-General of the United Nations to withdraw from the treaty, after which the withdrawal will take effect one year after the notification is received. This withdrawal would mark a significant departure from the court's support within the European Union.

All 125 states parties to the Rome Statute, including all EU countries, have a legal obligation to arrest Netanyahu and extradite him to the court in The Hague. Margaret Satterthwaite, the UN Special Rapporteur on the independence of judges and lawyers, told Middle East Eye: "As a member of the ICC, Hungary must arrest Netanyahu while he is on Hungarian soil." This obligation underscores the potential legal ramifications of Netanyahu's visit.

Netanyahu's four-day visit began on Wednesday, following an invitation extended by Hungarian Prime Minister and ally Viktor Orbán in November. Orbán, a right-wing nationalist, has declared that he will not enforce the ICC's arrest warrant. This marks Netanyahu's first visit to an ICC member state since the court issued arrest warrants for him and his former Defense Minister Yoav Gallant on November 21. It is also the first time in the ICC's 22-year history that arrest warrants have been issued for senior officials of a Western-allied country. The visit is a notable test of the ICC's authority and influence.

Under Netanyahu's government, Israel faces accusations of war crimes, genocide, and crimes against humanity. Israel's war in Gaza has resulted in the deaths of over 50,000 Palestinians, forced the displacement of most of the 2.4 million population, and rendered the enclave largely uninhabitable. These allegations and the resulting humanitarian crisis have intensified scrutiny of Israel's actions.

ICC spokesperson Fadi El-Abdallah condemned Hungary's non-compliance with the court's decisions on Wednesday. He told Middle East Eye: "This is not only a legal obligation that the Rome Statute gives to the court, but also a responsibility towards other States Parties." The spokesperson emphasized the importance of member states adhering to their treaty obligations.

El-Abdallah stated: "When States have doubts about cooperation with the Court, they can consult the Court in a timely and effective manner. However, States do not have the right to unilaterally decide on the validity of the Court’s legal decisions." Article 119 of the Rome Statute stipulates that "any dispute concerning the judicial functions of the Court shall be settled by decision of the Court." This highlights the established mechanisms for addressing concerns and disputes within the ICC framework.

The arrest warrants are part of a war crimes investigation into the situation in Palestine, which was launched by former ICC Prosecutor Fatou Bensouda in 2021. Israel is not a member of the ICC, but the State of Palestine gained membership in 2015. Consequently, the court can investigate crimes committed by Israelis in the occupied Palestinian territories, including the Gaza Strip, the West Bank, and East Jerusalem. This jurisdictional basis allows the ICC to examine alleged crimes in the region.

ICC trials cannot be conducted in absentia. However, the court has no enforcement powers. It relies on the cooperation of member states to arrest and extradite suspects. UN expert Satterthwaite stated: "International justice can only function when states honour their commitments." The effectiveness of the ICC hinges on the willingness of member states to uphold their obligations.

Satterthwaite cited Article 87 of the Rome Statute, stating that failure to arrest Netanyahu effectively amounts to preventing the court from exercising its functions. "Impunity must end, and justice must be served, regardless of the status or power of the perpetrators," she said. The principle of accountability is central to the ICC's mission and the pursuit of international justice.

If countries fail to comply with the court's arrest requests, their actions can be referred to the ICC's governing body, the Assembly of States Parties, as was the case with Mongolia's failure to arrest ICC-wanted Russian President Vladimir Putin, with Mongolia claiming Putin enjoyed immunity. The Assembly can then take measures to promote cooperation. This mechanism allows for scrutiny and potential action against non-compliant states.

In the five months since the ICC issued the arrest warrants, Netanyahu appears to have limited his international travel. His only trip so far was to Washington in February at the invitation of then-US President Donald Trump. The United States is not a member of the ICC, and Trump sanctioned ICC Chief Prosecutor Karim Khan during Netanyahu's visit in response to his investigation into Israeli actions in Gaza. This demonstrates the complex geopolitical landscape surrounding the ICC's actions.

Ahead of Wednesday's visit, human rights organizations Amnesty International and Human Rights Watch warned that Hungary's disregard for the court's orders would embolden the Netanyahu government to continue violating international law in Gaza without fear of accountability. Amnesty International's Agnès Callamard urged the Assembly of States Parties in a letter on Tuesday to take measures to promote member states' cooperation with the court and prevent non-compliance. These warnings highlight the potential consequences of undermining the ICC's authority.

Meanwhile, the Brussels-based Hind Rajab Foundation, an organization advocating for international justice, stated on Tuesday that it would launch a "coordinated legal and political campaign" against Netanyahu's visit, urging his arrest. This demonstrates the ongoing efforts to hold Netanyahu accountable and to uphold the principles of international law.