Editor’s note: This report has been updated to clarify the Biden administration’s efforts to empower the Palestinian Authority to replace Hamas in the Gaza Strip.
The Biden administration and Israel’s supporters in Congress are lashing out at the International Criminal Court (ICC) over potential arrest warrants that could be issued for alleged crimes by Israeli officials in prosecuting the country’s war against Hamas.
The reports of forthcoming arrest warrants have reignited debate over the court’s priorities, and poses a high-profile test of the body’s independence in the face of political pressure and influence from all sides.
Lawmakers on both sides of the U.S. political aisle have raised the prospect of “consequences” if the ICC goes ahead with the arrest warrants.
President Biden’s officials and allies argue the court holds no jurisdiction over Israel, and that democratic nations with an independent judiciary should not be subject to the court’s scrutiny.
“My understanding of the ICC, first I’m not sure they have jurisdiction. Secondly, If a country has a comparable system, it’s not an appropriate investigation by the ICC,” Sen. Ben Cardin (D-Md.), chair of the Senate Foreign Relations Committee, told The Hill.
But Biden officials have remained tight-lipped on whether they would seek to impose actions on the ICC if it went ahead with the arrest warrants. In April 2021, Biden revoked sanctions on ICC prosecutors imposed by the Trump administration.
Blowback from Israel’s supporters in the U.S. would likely chill American cooperation with the court, which can be carried out on a case-by-case basis.
“That’s something that always worried us, because we wanted the ICC to be succeeding in Sudan or Ukraine or Uganda or Congo, wherever it was doing cases,” said Stephen Rapp, who served as head of the Office of Global Criminal Justice during the Obama administration.
“That’s one of the things I frankly fear from all of this, and something the ICC should be aware of,” added Rapp, who also served as a prosecutor of war crimes for Sierra Leone and Rwanda.
Even as the U.S. is not a member of the ICC, its participation in certain cases gives it significant influence with the prosecutors on the court, which they use to elevate American concerns over how actions by the court can have a negative impact on sensitive diplomacy or the situation on the ground.
Israeli Prime Minister Benjamin Netanyahu is reportedly courting U.S. influence to help kill ICC attempts to issue arrest warrants for himself and other senior Israeli officials over alleged war crimes committed in Gaza. The ICC is reportedly also looking to issue arrest warrants for Hamas officials over its Oct. 7 assault in Israel, which triggered the war.
“It will … be the first time that a democratic country fighting for its life according to the rules of war is itself accused of war crimes,” Netanyahu said on Tuesday.
“Israel expects the leaders of the free world to stand firmly against the ICC’s outrageous assault on Israel’s inherent right of self-defense. We expect them to use all the means at their disposal to stop this dangerous move.”
The U.S. has a complicated relationship with the ICC that has drawn claims of hypocrisy. When the U.S. in 2022 engaged the court to investigate alleged Russian war crimes committed in Ukraine, Rep. Ilhan Omar (D-Minn.) called to revoke a Bush-era law that requires the U.S. to block the court from investigating Americans.
“It’s easy for people to see the hypocrisy in those two statements when we’ve said previously that we don’t believe in the ability of the court to [be] unbiased,” Omar told HuffPost at the time.
The criticism from Omar, a fierce critic of Israel’s policy toward Palestinians who has been condemned by her colleagues for trafficking in antisemitic language, speaks to the pressure faced by ICC prosecutor Karim A. A. Khan from both sides of the Gaza conflict.
Muslim-majority countries and developing countries, including many who support Palestinians, have long criticized the court as bowing to the whims of the U.S.
“The most intense pressure and the criticism has come that he’s … going after countries that aren’t liked by the U.S. rather than countries that are liked by the U.S.” said Rapp.
The ICC launched its investigation into possible Israeli war crimes in Gaza at the request of ICC members South Africa, Bangladesh, Bolivia, Comoros and Djibouti.
“I see it from both sides,” Rapp said. “On one hand, each prosecutor takes an oath not to take instructions from any government … on the other hand, the international courts do not succeed without state cooperation.”
The U.S. and its allies are reportedly worried that the court moving ahead with arrest warrants could harm sensitive diplomacy being carried out to reach a cease-fire between Israel and Hamas, which would allow the release of Israeli hostages and an increase in humanitarian aid for Palestinians in the Gaza Strip.
On top of this, the Biden administration is working to empower the Palestinian Authority to replace Hamas in the Gaza Strip. Further, the administration wants to use establishing ties between Israel and Saudi Arabia as a potential pathway for Israeli recognition of a Palestinian state.
Netanyahu has reportedly warned the U.S. that if the ICC goes ahead with the arrest warrants, he would be forced to impose consequences on the Palestinian Authority, which could trigger its collapse.
Rapp said a clear way for Israel to negate efforts by the ICC is to more publicly show it’s taking steps to alleviate the apparent merits of the case. The New York Times reported earlier this week that Israeli officials believe the arrest warrants will center on allegations of Israel preventing the delivery of humanitarian aid to the Gaza Strip and “pursuing an excessively harsh response to the Hamas-led Oct. 7 attacks on Israel.”
“Frankly, one of the surefire ways to get the ICC off [the case] is to actually conduct genuine investigations — not that they have to have guilty verdicts — but do it in a transparent way, taking seriously their obligations,” Rapp said.
Updated at 8:01 a.m. EDT