A bipartisan group of senators is calling on President Biden to make full use of his authority if the International Criminal Court (ICC) issues arrest warrants for Israeli officials over its war in Gaza.
In a letter led by Sen. Marco Rubio (R-Fla.) delivered late Thursday, the lawmakers say Biden should enforce the American Servicemembers Protection Act of 2002 if the ICC targets Israelis.
Under that law, the president is empowered to use “all means necessary” to free any U.S. or allied personnel imprisoned by the international court.
“It is outrageous that the ICC would make a political calculus to target Israel, which only further undermines the Court’s legitimacy and undercuts efforts to advance peace between Israelis and Palestinians. Under the American Servicemembers Protection Act of 2002 (P.L. 107-206), the President is granted broad authorities to respond to these types of actions by the ICC, and we urge you to fully implement the law should the Court move forward with action against Israel,” wrote the lawmakers.
Rubio was joined by Sens. Jacky Rosen (D-Nev.), Tim Scott (R-S.C.), Joe Manchin (D-W.Va.), Chuck Grassley (R-Iowa) and Kirsten Gillibrand (D-N.Y.).
The ICC’s chief prosecutor, Karim Khan, is reportedly seeking to file charges against Israeli officials for their conduct of the war in Gaza, in particular for allegedly preventing or withholding humanitarian aid from reaching the territory’s population.
The ICC’s jurisdiction in Gaza and Israel is unclear because Israel is not a member, but the Palestinian Authority is an observer entity that recognizes the court’s authority.
The United States, Israel, Sudan and Russia all signed the Rome Statute of the ICC — the treaty that created the court — but later rescinded their membership.
The ICC holds jurisdiction over individuals in member states accused of war crimes, crimes against humanity, or genocide.
Because Israel is not a party to the ICC, the court has no jurisdiction over acts committed within the country, but it remains unclear whether the ICC would have jurisdiction over Israeli individuals either in Gaza, or ordering actions in Gaza.
Republicans in the House and Senate have moved for legislation to sanction any ICC officials who target nationals of non-ICC member states, though U.S. officials have largely welcomed ICC actions against Russians, including President Vladimir Putin, for that country’s actions in Ukraine.
Although the lawmakers in the new letter did not reference the Russian case, they made two distinctions, noting Israel’s actions were prompted by a Hamas attack on the Israeli homeland on Oct. 7, and Israel has a functioning and independent judiciary capable of prosecuting any abuses.
“ICC rules prohibit the Court from prosecuting cases against the citizens of a country with an independent judicial system. As a democratic country with a robust judicial system, including a military justice system, Israel is capable and has proven its ability to carry out its own proceedings. Moreover, since October 7th, Israel has exercised its right under international law to self-defense in response to an armed attack. Israel has taken significant actions to protect Palestinian lives as Hamas uses civilians as human shields,” wrote the lawmakers.