US President Joe Biden
Credit: Reuters Photo
By Andreas Kluth
It came as a shock, if not a surprise. The prosecutor of the International Criminal Court in The Hague is seeking arrest warrants, on accusations of war crimes, for not only three commanders of Hamas but also two leaders of Israel, including Prime Minister Benjamin Netanyahu. “Outrageous,” said US President Joe Biden, speaking for almost everybody in Israel and many in Washington. But if the US now scorns the court it helped create in the 1990s, it will undermine the international regime of law and order that it claims to defend.
The request by Karim Khan, the prosecutor, next goes to a panel of independent judges. Even if they issue the warrants, there’s little risk of anybody on the list ever being arrested. For a start, neither the US nor Israel is a signatory to the Rome Statute that established the ICC, and neither feels bound by it. And in the theoretical event that any of the five were ever tried, they’d be presumed innocent and have their day in court.
All of this may get lost in what is indubitably the most emotionally fraught and controversial conflict the ICC has ever taken on. By contrast, the Russian war of aggression against Ukraine seems morally clear-cut, with hardly anybody in the West objecting to the arrest warrant the court issued last year against Vladimir Putin. But as Khan this week emphasized on behalf of the ICC, and by extension the world, “if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse.”
No reasonable person will object to the charges against the three Hamas terrorists on Khan’s list. Yahya Sinwar, Mohammed Al-Masri and Ismail Haniyeh were without doubt among the masterminds behind the gruesome attacks of Oct. 7. The ICC now wants them for the crimes, as defined in articles 7 and 8 of the Rome Statute, of extermination, murder, rape and torture, as well as taking and abusing hostages and more. If anybody in Israel disagrees, it would be only about how to mete out a just punishment.
The controversy is instead about the charges against Netanyahu and his defense minister, Yoav Gallant. They stand accused of deliberately causing starvation, suffering, persecution, collective punishment and other inhumane acts — also as defined in articles 7 and 8 — against the civilian population of the Gaza Strip, as distinct from Hamas. The details include restricting the delivery of food and medicine, shutting off water and electricity, killing civilians and even aid workers.
The body of international humanitarian law, both customary and codified, has plenty to say about such tactics. Collective punishment is taboo, and even collateral damage of civilian targets must be kept “proportionate” not in relation to the overall war aim (eliminating Hamas, in this case) but to the immediate objective of a given missile strike, say.
Aware of the acrimony bound to come his way, Prosecutor Khan showcased the meticulous evidence that his trial lawyers have collected, and the august legal minds that gave advice in the process. That may not keep the US, in a show of support for its ally Israel, from impugning the legitimacy of the entire court.
The Biden administration has made clear that it denies the ICC’s jurisdiction in the matter and won’t respect its findings. Some legislators are ready to go further; a dozen Republican senators had already sent a letter to the ICC: “Target Israel and we will target you,” they wrote to Khan, threatening “to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States.”
It wouldn’t be the first American harassment of this court. One of the chief architects of the Rome Statute, the US subsequently turned against its own creation, lest the ICC should ever prosecute American soldiers or commanders. In 2002, Washington passed the “Hague Invasion Act,” a law that would in theory let a president dispatch troops to free Americans from detention. The administration of Donald Trump later slapped sanctions on an ICC judge and a lawyer who were investigating allegations against American soldiers in Afghanistan.
And yet, the US also cooperates with the ICC — in its investigations into Russian atrocities in Ukraine, for example. This cherry-picking is a terrible look for a power that still aspires, more or less, to be the leader of the free world. Across much of the planet, and especially in the so-called Global South, the US appears hypocritical, invoking its “rules-based order” against adversaries, from Russia to China, but ignoring it on behalf of friends, currently Israel.
The best argument against the ICC’s application for arrest warrants is that it implies, as a leading Republican senator put it, “a false moral equivalency” between the crimes of Hamas and the allegations against Israel. That, however, ought to be for the judges to decide. To cast aspersions preemptively on their professionalism and objectivity would be a disastrous signal for Washington to send.
The ICC and its neighbor in The Hague, the International Court of Justice, represent the concrete legacy of a centuries-old human aspiration, and passionate American leadership after the barbarism of World War II, to build a more humane world that rests on some modicum of law and order. The people who serve in The Hague tend to be idealists, and recognized authorities in their field.
The US cannot claim, at home or abroad, to stand for the rule of law only when it happens to like the particular rules or laws. Washington must end its on-again, off-again embrace of the treaties, conventions and institutions that it helped to build, or risk bequeathing to future generations a regression to the arbitrary barbarity of bygone centuries. Instead of condemning the ICC, the US should instead argue its best case before the tribunal that Israel’s leaders are not guilty as charged, and then accept the verdict.