Hands Off the International Criminal Court

Bibi Netanyahu is worried about the International Criminal Court, and for good reason. For several weeks, rumors have swirled that the ICC is preparing to issue arrest warrants for the Israeli prime minister, the country’s defense minister and the chief of its armed forces. The word is they will be charged with war crimes. The ICC is also reportedly preparing arrest warrants for the leaders of Hamas. 

The rumors follow more than seven months of nonstop carnage that began on Oct. 7, 2023, when Hamas and other Palestinian militant groups launched a coordinated attack on Israel, killing 1,149 people, including 766 civilians, and abducting another 247 as hostages, including women, children, grandparents and people with disabilities. There have also been allegations of gang rape and sexual mutilation leveled against Hamas and its collaborators. 

Palestinian casualties have been far greater. More than 34,000 Palestinians have died as a result of Israel’s military response, according to the Hamas-run Gaza Health Ministry; more than 70,000 have been wounded. According to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNWRA), an estimated 1.7 million Gazans have been displaced. Equally alarming, the head of the United Nations World Food Program has declared that conditions in northern Gaza have deteriorated into a “full-blown famine.” 

Netanyahu, as expected, has denounced the ICC. In a speech delivered on May 5, the first day of the annual weeklong commemoration of the Holocaust, he claimed that any arrest warrants would leave an “indelible stain” on international law and constitute an “unprecedented antisemitic hate crime” that would fuel antisemitism around the world.” 

What’s happening on college campuses across the U.S., he added, is “reminiscent of things that happened in German universities in the 1930s. Yes, they smashed windows there, too, only this time it’s happening in America in 2024.” Portraying himself as the savior of the Jewish people, he pledged to continue the fight against Hamas, even if “Israel has to stand alone.” 

Behind the scenes, Netanyahu has been pleading for help from the U.S., urging the Biden administration and congressional leaders from both major parties to pressure the ICC to drop its investigation. Thus far, his pleas appear to be well received. On April 29, White House Press Secretary Karine Jean-Pierre told reporters that President Biden has “been very clear” that he objects to the ICC’s investigation. 

Biden, whose relationship with Netanyahu has often been described as “strained,” echoed the prime minister’s concerns in the keynote address he gave on May 6 at the official U.S. Holocaust memorial service in Washington, D.C., remarking:  

I understand people have strong beliefs and deep convictions about the world. In America, we respect and protect the fundamental right to free speech, to debate and disagree. I understand. That’s America. But there is no place on any [college] campus in America or any place in America for antisemitism or hate speech or threats of violence of any kind.

Republican leaders have been more outspoken in their support for Netanyahu and condemnation of the ICC. In an April 24 letter sent to ICC chief prosecutor Karim Khan (which was recently published by Zeteo, a new media organization founded by investigative journalist Mehdi Hasan), 12 Republican senators — including Tom Cotton, Tim Scott, Mitch McConnell, Marco Rubio, Ted Cruz and Rick Scott — warned Khan that any arrest warrants for Israeli officials would be interpreted “not only as a threat to Israel’s sovereignty but to the sovereignty of the United States.”

“Target Israel and we will target you,” the letter concluded, “and bar you and your families from the United States. You have been warned.” 

This is not the first time U.S. leaders have bullied the ICC. In 2020, after the court opened an investigation into possible war crimes committed by both the Taliban and U.S. forces in Afghanistan, the Trump administration revoked the visas of the court’s lead and assistant prosecutors and froze their U.S. assets. The Biden administration lifted the sanctions, but continues to oppose the probe, which is moving forward slowly.  

Trump may have taken ICC antipathy to new heights, but the U.S. has never endorsed the court’s mission. Founded after a 1998 conference attended by 160 nations in Rome, the ICC was established as the first treaty-based international criminal court with the power to investigate and try governmental and nonstate actors accused of genocide, war crimes, crimes against humanity and wars of aggression.

The Rome Statute authorizes the court to impose heavy jail sentences up to life imprisonment. The court has its own detention facilities, but orders convicted defendants to serve their time in prisons run by nearby member states. In the 31 cases the ICC has opened since its inception, some involving more than one suspect, there have been 10 convictions and four acquittals.

Some 124 countries have signed the Rome Statute. Palestine, under the auspices of the Palestinian Authority, became a member state in 2015. However, neither the United States nor Israel have joined the court over fears that it could one day charge their citizens with international crimes. 

Although the ICC has been criticized in the past for targeting African human rights violators, the court’s image as a pawn of the great powers began to change with the opening of probes into U.S. actions in Afghanistan and, in 2021, possible Israeli war crimes in the occupied West Bank. 

In March 2023, the court took another historic step by issuing arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, the commissioner for children’s rights in the Office of the President of the Russian Federation. The warrants charge Putin and Lvova-Belova with war crimes for the deportation of Ukrainian children from occupied areas to Russia. 

What concerns Netanyahu and his ultra-right government most is the court’s decision, announced late last year, that it was broadening its West Bank inquiry to include the conduct of the war in Gaza. Israel may not be a member of the court, but Palestine is, and the court has jurisdiction to investigate the war. Under the Rome Statute, the court’s jurisdiction encompasses crimes committed by anyone within the territory of a member state. 

The ICC has no police or arrest powers of its own, but once an arrest warrant is issued, member states are obligated to take suspects into custody. Last summer, the threat of arrest deterred Putin from traveling to South Africa (a member state) to attend a summit of developing nations. Russia responded to Putin’s indictment with retaliatory arrest warrants of its own, calling for the apprehension of Khan and several ICC judges. 

If indicted by the ICC, Netanyahu would face a similar risk of arrest if he traveled to a member state. Nearly all European countries would be off-limits. 

Even if the Biden administration isn’t prepared to endorse U.S. membership, it must step aside and let the court do the critical work it was designed to accomplish. The ICC’s Gaza probe offers an historic opportunity to demonstrate U.S. commitment to international law — one the administration cannot afford to miss.