Don’t Go to War With the ICC

For weeks now, Israeli government officials have taken aim at the International Criminal Court, which they expected would issue arrest warrants against Israeli leaders for alleged war crimes. It is now clear they were right to be concerned. On May 20, ICC Chief Prosecutor Karim Khan announced that he has applied for arrest warrants for three leaders of Hamas—including its chief, Yahya Sinwar—as well as Israeli Prime Minister Benjamin Netanyahu and Yoav Gallant, the country’s minister of defense. He is charging the Hamas leaders with war crimes and crimes against humanity stemming from the group’s October 7 attack on Israel, when it killed and assaulted over 1,100 people, and its continued holding and mistreatment of hostages inside the Gaza Strip. The alleged Israeli crimes include using starvation as a weapon and withholding humanitarian aid from the civilian population in Gaza. It is now up to the court’s pre-trial chamber whether to issue the warrants, a decision that could take several months to consider.

Israel has made clear that it intends to attack the court, not cooperate with it. Many have argued the United States should join the Israelis in this effort. Indeed, earlier this month, 12 Republican senators signed a letter promising to retaliate against the court if the cases proceed. “Target Israel and we will target you,” they warned, threatening to sanction ICC employees and associates, and even their family members. U.S. President Joe Biden denounced the ICC’s decision to pursue Israeli leaders for war crimes, calling the application for arrest warrants “outrageous.” U.S. Secretary of State Antony Blinken told the Senate Foreign Relations Committee on May 21 that the administration would consider Republican proposals to retaliate against the court and “take it from there.”

Attacking the ICC is the wrong way to respond. The Biden administration has not suggested the charges are baseless, nor can it. For months, the administration has been highly critical of the Netanyahu government’s failure to allow enough aid into Gaza. Earlier this month, it released a report finding that the Israel Defense Forces “has struck humanitarian workers and facilities” and that “numerous credible” reports “have raised questions about Israel’s compliance with its legal obligations under [international humanitarian law] and with best practices for mitigating civilian harm.”

Sanctioning the court and its officials would send a clear message: the United States’ commitment to international justice is not principled but purely political. Instead, the Biden administration should work with Israel to take advantage of the one sure way to derail the proceedings against Israeli officials while allowing the cases against the Hamas leaders to proceed: encourage Israel to undertake its own genuine investigation of its actions in Gaza.

CASE BY CASE

One might reasonably wonder whether the court even has jurisdiction over Hamas leaders and Israeli government officials. Israel is not a party to the Rome Statute, the treaty that created the court. But the “State of Palestine” has been a party to the court since it signed on to the Rome Statute in 2015. Around the same time, it submitted a declaration accepting the jurisdiction of the ICC “in the occupied Palestinian territory, including East Jerusalem.” Based on that declaration, then Prosecutor Fatou Bensouda announced that she had opened a “preliminary examination” into the situation in Palestine, and in December 2019 she sought a ruling to clarify the territorial scope of the ICC’s jurisdiction. In 2021, the pre-trial chamber determined that the court’s jurisdiction “extends to Gaza and the West Bank, including East Jerusalem.”

At the time, the United States objected to the ICC’s decision to extend its jurisdiction to those places. It stated, “The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.” The United States is not a party to the Rome Statute, however, and that limits its influence over how the ICC operates. Moreover, although the United States and Israel do not recognize Palestine as a state, over 140 other states do, including Spain, Norway, and Ireland as of this week. Earlier this month, the United Nations General Assembly voted 143 to nine in favor of a resolution that grants new “rights and privileges” to the “State of Palestine” at the UN, extending to its delegation nearly all rights except the right to vote, which is a privilege only the Security Council, where the United States wields a veto, can grant. The United States was one of the nine states, together with Israel, who voted against the resolution. Following Khan’s announcement, Blinken reaffirmed the U.S. view that the ICC has no jurisdiction over “this matter.”

For Israel, the acts at issue are its alleged use of starvation as a method of war and the denial of humanitarian relief to the people of Gaza. As Khan’s statement explains, “Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.” The statement cites the warning from UN Secretary-General António Guterres two months ago, when he said, “1.1 million people in Gaza are facing catastrophic hunger—the highest number of people ever recorded—anywhere, anytime” as a result of an “entirely manmade disaster.” Since then, World Food Program Director Cindy McCain has reported that “full-blown famine” is underway in northern Gaza. In mid-April, Samantha Power, the administrator of the U.S. Agency for International Development, said it was “credible” to assess that famine was occurring in parts of Gaza. The United States has repeatedly pressed Netanyahu to increase the flow of aid into Gaza, largely unsuccessfully.

Attacking the ICC is the wrong way to respond.

Khan is likely focusing on starvation and restriction of aid for the simple reason that these crimes are the easiest to demonstrate. Indeed, on October 9, Gallant made a statement that has been seen by some as essentially a confession to precisely the acts being charged by Khan. Gallant declared, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals, and we are acting accordingly.”

The ICC prosecutor’s application is far from the first time these allegations have been made against Israel since October 7. On March 19, the UN’s human rights chief, Volker Türk, said that Israel’s policies of restricting the flow of aid into Gaza might amount to a war crime. That same month, Oxfam, a nongovernmental organization focused on the alleviation of global poverty, issued a statement that Israel “has been using starvation as a weapon of war for over five months now.”

Although the decision to seek the arrest of Netanyahu and Gallant is getting the most attention, it is important to note that Khan is also seeking warrants for top Hamas officials. That application focuses on Hamas’s October 7 assault and the treatment of the hostages taken on that day, many of whom continue to be held and abused in Gaza. Khan alleges numerous war crimes committed against the hostages held in captivity in Gaza, including rape and other acts of sexual violence, torture, other inhumane acts, cruel treatment, and outrages against personal dignity. Both Sinwar and Mohammed Deif, commander-in-chief of the military wing of Hamas, are believed to be living in Gaza, but Ismail Haniyeh, the chairman of Hamas’s political bureau, lives in Doha, Qatar. Qatar is not a party to the ICC, and therefore not obligated to turn him over, but Khan’s request for an arrest warrant will likely increase the pressure Qatar faces from ICC member states to turn him over for prosecution.

COURT OF LAST RESORT

So far, there are only applications for arrest warrants. It remains possible that the pre-trial chamber will not grant the applications. Given the political sensitivity of the matter, however, Khan almost certainly limited this opening request to warrants he believes he will be successful in obtaining. He is likely right. A panel of leading international law experts convened by Khan to review the full applications and the materials supporting them—none of which has yet been publicly released—concluded that the materials “demonstrate reasonable grounds to believe that the Court has jurisdiction over the crimes set out in the applications for arrest warrants, that these crimes were committed and that the suspects are responsible for them.”

Israel still has one surefire way to derail the cases against Netanyahu and Gallant: investigate and, if warranted, prosecute them itself. The Rome Statute makes clear that the ICC can exercise its jurisdiction only when a state is either unwilling or unable to complete an investigation and, if necessary, prosecute a crime itself. Khan’s office said it had not received "any information that has demonstrated genuine action at the domestic level [in Israel] to address the crimes alleged or the individuals under investigation." If Israel began an active and genuine investigation of the same cases, it could challenge their admissibility before the court. This challenge would prevail even if they are ultimately exonerated, as long as the proceedings are genuine.

There are almost certainly more requests for arrest warrants coming. These, too, could be headed off by a genuine investigation by Israel. Indeed, Israel could have successfully stalled and perhaps even altogether prevented the current request by opening an investigation and then requesting a deferral of the court’s investigation in whole or in part in light of its own domestic proceedings—a step it declined to take. But it is not too late to change course.

COLLATERAL DAMAGE

There are those in Congress who want to return to the Trump administration’s all-out war on the court. A bill proposed in the U.S. House of Representatives—dubbed the Illegitimate Court Counteraction Act—would sanction and revoke the visas of any ICC employee or associate involved in the investigation into the war in Gaza. Although this proposed bill may not win enough votes to pass, the Biden administration has signaled it is open to working with Republicans to retaliate against the court. That would be a huge mistake.

Even if the court issues arrest warrants, the chance of a criminal trial for either Netanyahu or Gallant remains a remote possibility. Israel is highly unlikely to turn either one over to be tried any time soon. The main effect of arrest warrants will likely be to undermine their legitimacy and make it impossible for them to travel to any ICC member state without risk of apprehension.

Meanwhile, sanctions on ICC staff would undermine Washington’s efforts to bring Russia to justice for its crimes in Ukraine. In the wake of Russia’s invasion, a Senate resolution sponsored by Republican Senator Lindsey Graham and cosponsored by members of both parties described the court as “an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists.” Legislation passed in 2023 amended existing law to allow the United States to assist with investigations and prosecutions of foreign nationals related to the situation in Ukraine. That has, in turn, led to unprecedented levels of cooperation between the ICC and the United States, resulting so far in four arrest warrants—including one for Russian President Vladimir Putin himself. Sanctions also would put at risk cooperation over accountability for crimes in Sudan as a new genocide looms, as well as witness protection and fugitive apprehension efforts.

Israel should launch a genuine investigation of its own.

Retaliating against the ICC would also cripple the United States’ capacity to advocate for international justice in other situations in the future. The United States has long made advocacy for global criminal justice a key element of its foreign policy. Ambassador-at-large for Global Criminal Justice Beth Van Schaack travels the world pressing states to meet their international legal obligations and ensure that they hold those who commit international crimes to account. Those efforts would be rendered ineffective if the United States is seen to support criminal accountability only for geopolitical opponents.

Demonstrating hypocrisy in response to the ICC’s work would further isolate and alienate the United States on the global stage at a moment when it is engaged in a contest for the hearts and minds of people and states around the globe to uphold the rules-based international order. The effort to win influence abroad does not just require creating effective economic or military ties. It also requires demonstrating that the United States can live up to the principles it claims to support. Attacking the ICC proves just the opposite: it shows that the United States supports global justice only when applied to its adversaries. And in doing so, it suggests that the United States’ commitment to the rule of law extends only so far as its short-term naked self-interest allows. There is no surer way to erode the global legal order.

The United States should continue to offer its strongest support for the security of Israel. But that does not require attacking the court. If the United States and Israel truly believe there is no legal basis for the charges, they should call the ICC prosecutor’s bluff. Israel should launch a genuine investigation of its own. It should demonstrate its commitment to the rule of law and justice by carefully reviewing the evidence and showing that the charges are, indeed, groundless. Opening a genuine investigation would force the court’s hand, as it would have no choice under its own rules but to find the cases against Netanyahu and Gallant inadmissible, while allowing the cases against the leaders of Hamas to continue.

Of course, Netanyahu, who is already facing domestic corruption charges, is extremely unlikely to agree to a domestic investigation. He has proven impervious to U.S. pressure, ignoring the Biden administration’s calls to better protect civilians in Gaza again and again, as he and Gallant continue to wage a war that Biden has called “indiscriminate” and “over the top.” If Israel will not take advantage of the one surefire way to end the proceedings before they go any further, the United States should not shred its credibility simply to protect the men who have ignored every warning.