As a party to the ICC’s Rome Statute, Hungary is obliged to arrest suspected war criminals and send them to The Hague.
In a shameless attempt to undermine international accountability for accused war criminal Israeli Prime Minister Benjamin Netanyahu, Hungarian President Viktor Orbán graciously hosted the architect of Israel’s 18-month genocide in Gaza on April 3.
The International Criminal Court (ICC) is now formally investigating Hungary’s blatant refusal to fulfill its legal obligation to arrest Netanyahu and send him to The Hague. States parties to the Rome Statute have a duty to cooperate with the court and facilitate the arrest of any ICC suspect who enters their territory. Although Orbán announced Hungary’s withdrawal from the statute on April 3, it does not take effect for one year.
Hungary’s move comes as more ICC members are threatening not to comply with their duties as well. Other U.S. allies in the European Union that are states parties to the Rome Statute — including France, Germany, Italy, Poland and Romania — have either indicated that they will refuse to uphold their obligations to arrest Netanyahu, or have refused to promise that they will enforce the court’s arrest warrant.
Arrest Warrant for Netanyahu Alleges War Crimes and Crimes Against Humanity
On November 21, 2024, Pre-Trial Chamber I of the ICC issued arrest warrants for Netanyahu and his then-Defense Minister Yoav Gallant for war crimes and crimes against humanity committed in Gaza from at least October 8, 2023 to May 20, 2024 (the day the ICC prosecutor applied for the warrants).
The chamber found reasonable grounds to believe that Netanyahu and Gallant were co-perpetrators of the war crime of starvation as a method of warfare, because they “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.” The chamber noted that the two men impeded humanitarian aid and failed to facilitate relief.
In addition, the chamber found reasonable grounds to believe Netanyahu and Gallant are criminally responsible as civilian superiors for the war crime of intentionally directing an attack against the civilian population.
The chamber also found reasonable grounds to believe that Netanyahu and Gallant were co-perpetrators of the crimes against humanity of murder, persecution and other inhumane acts.
At least 51,000 Palestinians have been killed since October 7, 2023, a number widely considered to be an undercount, with thousands more missing under the rubble. It has now been 51 days since any humanitarian aid has entered Gaza.
The Rome Statute Requires Hungary to Cooperate With the ICC
Article 86 of the Rome Statute says that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”
When the ICC learned that Netanyahu had arrived in Hungary on April 3, it asked Hungary to effect a provisional arrest of the Israeli leader. Article 59 mandates that “A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question.” But although Netanyahu remained in Hungary for three days, Orbán refused to arrest him.
It is not up to parties to the Rome Statute to “unilaterally determine the soundness of the court’s legal decisions,” said ICC Spokesperson Fadi El Abdallah. “Any dispute concerning the judicial functions of the court shall be settled by the decision of the court.”
Hungary’s Withdrawal From the Rome Statute Is Not Effective for One Year
At the time the ICC issued the arrest warrant for Netanyahu, Orbán said it would have “no effect” in Hungary. Orbán’s announcement about Hungary’s withdrawal from the Rome Statute came shortly after Netanyahu arrived in the country. But that withdrawal has no bearing on the current proceedings in the ICC.
That is because Article 127 specifies that, “The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute.”
Moreover, Article 127 provides that Hungary’s “withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective.”
Agnès Callamard, secretary general of Amnesty International, condemned Hungary’s attempt to avoid its legal obligations under the Rome Statute. “Hungary’s purported withdrawal from the ICC is a brazen and futile attempt to evade international justice and to stymy the ICC’s work,” she said on April 3. “This cynical announcement does not change the fact that Hungary still has a fundamental obligation to arrest and surrender Benjamin Netanyahu to the ICC. Any withdrawal would take effect in one year and must not distract from Hungary’s international legal obligations.”
The ICC Is Investigating Hungary’s Refusal to Arrest Netanyahu
Article 87(7) of the statute says that when a state party “fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”
In light of Hungary’s refusal to cooperate with the court in arresting Netanyahu, the ICC launched an investigation on April 16 and invited Hungary to provide submissions to the chamber by May 23, for purposes of proceedings under Article 87(7).
The investigation into Hungary is the third time within a year that the ICC has opened an inquiry into a state party for refusing to arrest suspects. In October 2024, the court cited Mongolia for welcoming and failing to arrest Russian President Vladimir Putin who is under an ICC arrest warrant for war crimes in Ukraine. And in February, the court asked Italy why it sent a Libyan man accused of murder and torture back to Libya instead of arresting him.
Hungary’s refusal to comply with the ICC’s order will encourage Israeli officials to continue perpetrating atrocities against the Palestinian people. Erika Guevara-Rosas, head of global research, advocacy and policy at Amnesty International, said that every time Netanyahu travels “to an ICC member state that does not end in his arrest” it will embolden Israel “to commit further crimes against Palestinians.”
Trump’s Executive Order Targets the ICC
In response to the ICC arrest warrant against Netanyahu, 45 Democrats joined Republicans in the U.S. House of Representatives to pass a bill on January 9 that would impose sanctions on any foreigner who investigates, arrests, detains or prosecutes U.S. citizens or those of an allied country, including Israel. Democrats in the Senate blocked the legislation on January 28.
Ten days later, on February 6, Donald Trump issued an executive order imposing sanctions on the ICC and Chief Prosecutor Karim Khan for prosecuting Netanyahu. The executive order says that any non-U.S. person or organization can be sanctioned if they directly assist any effort of the ICC to investigate, arrest, detain or prosecute a “protected person” without the consent of that person’s country of nationality.
Sanctions can also be levied on people who materially assist, sponsor or provide financial, material or technological support to the court’s efforts. The sanctions include blocking assets within the United States as well as prohibition of entry into the U.S. of any sanctioned person and their family members.
“Protected persons” are defined as U.S. nationals and U.S. military personnel, as well as any person who is a citizen or lawful resident of a U.S. NATO ally or “major non-NATO ally.” Israel, the Philippines and 17 other countries are currently designated as major non-NATO allies.
After Trump issued his executive order, Orbán supported the sanctions and ordered a “review” of Hungary’s relationship with the ICC. The review came as nearly 80 countries signed onto a joint statement in support of the ICC, though some of those countries, such as France and Germany, have suggested they would not arrest Netanyahu themselves.
“Ultimately, the sanctions will harm all of the ICC’s investigations, not just those opposed by the US government,” according to Amnesty International. “They will negatively impact the interests of all victims who look to the Court for justice in all the countries where it is conducting investigations, including those investigations the US ostensibly supports — for example in Ukraine, Uganda, or Darfur.”
The ACLU filed a federal lawsuit arguing that Trump’s sanctions violate the First Amendment since they prohibit victims’ advocates from speaking with the ICC’s Office of the Prosecutor.
“Because of this order, I’ve been forced to stop helping the ICC investigate horrific crimes committed against the people of Myanmar, including mass murder, torture, and human trafficking,” said Matthew Smith, co-founder and CEO of Fortify Rights.“This Executive Order doesn’t just disrupt our work — it actively undermines international justice efforts and obstructs the path to accountability for communities facing unthinkable horrors.”
This article first appeared on Truthout.
