The International Criminal Court has issued arrest warrants for the prime minister and former defense minister of Israel. The New York Times claims the move “dealt a sharp blow to Israel’s global legitimacy.”
But did it really? And what are the practical consequences of the ICC’s action?
How It Started
Using the ICC to target Israel is a central part of a long-term strategy by the Palestinian Authority of harassment in the international arena. Although the Oslo Accords explicitly prohibit the PA from taking such action, in January 2009 it formally asked the ICC to investigate Israeli “war crimes.”
Three years later, the ICC declined the PA’s request on technical grounds—the ICC only has jurisdiction in “states,” and the PA is not a state. But later that year, the UN General Assembly granted “non-member observer status” to the “State of Palestine.” So the PA filed a new complaint with the ICC, and this time it was accepted.
The US Congress previously adopted legislation to shut down the PLO-PA office in Washington, DC, if the PA used international bodies such as the ICC to attack Israel. The Obama administration ignored that law, but in 2018 the Trump administration proceed to shut down the PLO office. Husam Zomlot, who was head of that office and had to leave the US when it was closed, charged that President Trump’s action was akin to that of the mafia.
In 2019, ICC Prosecutor Fatou Bensouda announced that she was investigating Israeli “crimes against humanity” that allegedly were committed in Gaza during previous years. She said her inquiry also would examine the existence of “Israeli settlements in the West Bank” as possible war crimes.
Paper Tiger
The International Criminal Court, which began operating in 2002, was created by the United Nations. It consists of 18 judges who each serve a single nine-year term. The judges are elected by the 125 countries that recognize the ICC. The United States and Israel are among the handful of countries that have never accepted its authority. Then-Defense Secretary Donald Rumsfeld said in 2002 that the chief US objection was that the court might undertake “politicized prosecutions of American service members and officials,” meaning that anti-American regimes would manipulate the court to prosecute Americans on false “war crimes charges.”
Israel has always had similar concerns about how the court would be used. Those fears appear to have been borne out by the latest developments.
The ICC does not have any kind of police force to implement its decisions. Its power derives from the willingness of its member-countries to take action. Thus the ICC’s first indicted war criminal, Thomas Lubanga, was arrested by the authorities in Congo in 2006, handed over to the ICC for trial, and then subsequently sent back to Congo for imprisonment. Another convicted Congolese war criminal, Bosco Ntaganda, is currently serving his prison sentence in Belgium, while a Ugandan war criminal, Dominic Ongwen, was sent to Norway to serve his jail sentence.
Altogether, the ICC has issued 56 arrest warrants and conducted 21 trials, as of 2024.
Coordinating with the PA
There have been indications of friendly contact between the ICC prosecutors and the PA, which would call into question the objectivity of ICC’s inquiry into Israeli actions.
In an interview on PA Television in 2021, the PA’s minister of foreign affairs, Riyad Al-Malki, was asked if he “made contact” with Prosecutor Bensouda, following her announcement of the investigation of Israel.
Al-Malki replied, “Yes, we are in constant contact with her,” both “directly or indirectly, through the visits we are making, through the contact via our delegation at The Hague, or through the periodical reports we are submitting to the general prosecutor’s office.”
The PA foreign minister also revealed that the ICC tipped off the PA in advance of its decision to investigate Israel. “We were informed a number of hours before the announcement that there will be an announcement. We knew about this, but they asked us to keep it secret.”
Al-Malki noted that PA officials were planning to visit the ICC’s headquarters in order to learn “what can be expected of [Bensouda],” as well as “what they expect from the government of the State of Palestine in this matter,” and “when we can expect the arrival of the ICC’s first delegations for preparations ahead of beginning the investigation.”
Biden and Sanctions
Karim Ahmad Khan, a British attorney, was named the ICC’s chief prosecutor in 2021 and took over its investigation of Israel. In May 2024, Khan announced that he would formally ask the court to issue arrest warrants for Prime Minister Benjamin Netanyahu and then-Defense Minister Yoav Gallant.
To “balance” his announcement, Khan said he would also seek warrants against three Hamas leaders: Yahya Sinwar, Ismail Haniyeh and Mohammed Deif. In practical terms, however, the warrants would affect only the Israeli officials, because Hamas terrorists travel in secret and only enter those countries that embrace them and would never arrest them.
President Joe Biden denounced Khan’s application for the arrest warrants against Israeli leaders as “outrageous.” Yet when a bipartisan group of congressmembers sought to introduce legislation to impose sanctions on the ICC, the Biden administration got cold feet.
During an appearance before the Senate Foreign Relations Committee, Secretary of State Antony Blinken said that while the administration is “happy to work with Congress, with this committee on an appropriate response” to the ICC’s action, “the devil is in the details.” It turned out that the administration considered any kind of practical response, such as sanctions, to be “the devil.”
Republican congress members drafted a bill to prohibit US officials from cooperating with the ICC in any way, and to withdraw some US funding from the UN. As a precedent, they cited the executive order signed by then-President Donald Trump in 2020, imposing travel sanctions on ICC officials—effectively barring them from entering the US or US-held territory—because the ICC was investigating alleged “war crimes” by American forces in Afghanistan.
Prominent House Democrats, including Gregory Meeks of New York and Brad Schneider of Illinois, initially signaled they would support the new legislation against the ICC. But with congressional support for sanctions gathering steam, the White House intervened. Spokesman John Kirby announced, “We don’t believe that sanctioning the ICC is the answer.”
What was Biden’s “answer”? To briefly and verbally complain about the ICC and then quietly drop the issue after “sending a message.” Foreign Affairs Committee chair Michael McCaul (R-Texas) responded, “We’re not really interested in a messaging bill.”
With Democrats backing away, the legislation stalled in committee—but Republicans may revive it when the new Congress takes over in January, with a GOP majority in both the House of Representatives and the Senate.
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