International Criminal Court (ICC) Prosecutor Karim Khan today filed applications for arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Gallant, and three Hamas leaders. The warrants were filed with the ICC’s Pre-Trial Chamber I, whose judges will now decide whether the necessary standard for the issuance of warrants has been met. The pre-trial chamber is considered highly likely to grant the applications. If it does, the warrants will be issued.
Israel is not a member of the ICC, and the court has no jurisdiction over it. Israel is a democratic nation with a robust and independent judiciary. Today’s action by the court is an egregious abuse of power by an increasingly lawless and politically motivated institution.
FDD Action also supports and encourages Members of Congress to cosponsor legislation in the House and Senate imposing sanctions on ICC officials who abuse their authority.
The Illegitimate Court Counteraction Act (S. 224 / H.R. 8282) is a targeted measure to hold ICC officials accountable, protect American allies, and safeguard U.S. national security interests. We urge your offices to support these important measures.
Below are five things you should know about today’s decision, including several recommendations for how Congress and the Biden administration should respond.
• There is no factual or legal basis for these warrant filings against top Israeli officials. The filings are clearly driven by politics and the same anti-Israel animus that has long dominated the United Nations and other international organizations. These filings should be treated as what they are: quintessential lawfare, a political vendetta masquerading as a legal proceeding.
• The ICC warrants also indicate a clear double standard. The ICC has not issued arrest warrants for the Islamic Republic of Iran’s Supreme Leader Ayatollah Ali Khamenei or any other Iranian official, Syrian President Bashar al-Assad or any other Syrian official, or the genocidal Chinese President Xi Jinping or any other Chinese official. While the Islamic Republic of Iran, Syria, and the People’s Republic of China are, like Israel, not ICC members, the ICC has only concocted a specious jurisdiction claim for Israel, a democratic nation with a robust and independent judiciary. This is an outrageous abuse of power.
• According to John Spencer, chair of urban warfare studies at West Point, “Israel has implemented more precautions to prevent civilian harm than any military in history—above and beyond what international law requires and more than the U.S. did in its wars in Iraq and Afghanistan.”
• The May 10 State Department report on Israel’s use of American-made weapons concluded as much, finding that the available information was insufficient to definitively identify even one specific Israeli violation of international humanitarian law (IHL), also known as the law of war. It describes Israel’s robust IHL compliance procedures. It notes that the U.S. “has no direct indication of Israel intentionally targeting civilians” and that Israel aborts strikes when civilians are observed near the target. The report also confirms that Israel is responding to Gaza-related misconduct allegations by examining “hundreds of incidents,” a number of which have become “ongoing, active criminal investigations.”
• There is bipartisan opposition to the ICC’s illegitimate overreach. In fact, since the ICC’s founding in 2002, every U.S. administration, of both parties, has refused to join the court, fearing the ICC’s politicization and misuse. Both the Biden and Trump administrations and over 330 Members of Congress from both parties have rejected ICC investigations of the U.S. and Israel in the past, and both administrations have chosen not to join the ICC. NSC Spokesperson John Kirby said on April 30, “We don’t believe the ICC has any jurisdiction here.”
• The ICC is a “court of last resort.” This means it is prohibited by its charter from proceeding in any case unless the relevant government is unwilling or unable to police itself. Israel has a robust and independent legal system in place. Even ICC Prosecutor Khan has said, “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.” The Israel Defense Forces (IDF) Military Advocate General Corps is conducting ongoing investigations into incidents of alleged misconduct related to the Gaza war. Issuing ICC arrest warrants for Israelis is incompatible with the ICC charter, Khan’s statement, and Israel’s clear willingness and ability to police alleged IDF misconduct.
• The United States, like Israel, has a robust system for self-policing conduct by its personnel. The ICC’s proposed warrants for Israeli officials would set a dangerous precedent for U.S. officials. The ICC has an open investigation of alleged U.S. war crimes relating to Afghanistan, which the court placed on the back burner in 2021. The Military Coalition, representing more than 5.5 million current and former U.S. servicemembers, has warned that Afghanistan investigation “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries.”
• ICC warrants for Israeli officials would embolden Hamas, Hezbollah, and Tehran, and thereby torpedo efforts to secure a hostage release. Such warrants also could cripple the ability of the Saudis and other Arab states to proceed with peace efforts.
• U.S. law already restricts U.S. cooperation with the ICC and authorizes the President to act to protect allies. Congress must ensure this law is fully enforced. The American Servicemembers’ Protection Act of 2002 restricts U.S. cooperation with the ICC and provides that “the President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the [ICC].” Subsection (b) includes “military personnel, elected or appointed officials, and other persons employed by” various U.S. allies including Israel, “for so long as that government is not a party to the [ICC] and wishes its officials and other persons working on its behalf to be exempted from the jurisdiction of the [ICC].”
• Congress should impose financial sanctions and visa bans on ICC officials like Khan for abuse of power that threatens American interests and weakens our allies. In 2020, during her term as ICC prosecutor, Fatou Bensouda, Khan’s predecessor, aggressively pursued politicized investigations against the U.S. and Israel for alleged war crimes. The Trump administration responded by imposing sanctions on Bensouda and one of her aides. The Biden administration lifted those sanctions in April 2021.
• The administration should use its executive authority to reimpose such sanctions. If it fails to do so, Congress should act. Senator Tom Cotton (R-AR), along with Senators Ted Cruz (R-TX) and Marco Rubio (R-FL), introduced legislation to impose financial sanctions and visa bans on ICC officials who investigate or prosecute U.S. or allied troops and officials. Representatives Chip Roy (R-TX) and Brian Mast (R-FL) have introduced similar legislation in the House.
• The United States should halt all cooperation with the ICC, and Congress should impose a firm prohibition on any future U.S. interactions. While the U.S. does not provide funding to the ICC, it has provided various types of intelligence and other practical assistance to the court. In December, Beth Van Schaack, the Biden administration’s Ambassador-at-Large for Global Criminal Justice, described what she called “President Biden’s ‘reset’ of the U.S. relationship with the ICC,” including providing various types of “practical assistance” to the ICC. The ICC prosecutor’s filing of warrants against Israeli officials should bring an end to all U.S. cooperation with the ICC.
• The ICC is funded largely by key American allies. Congress should urge them to use their leverage to halt these politicized proceedings. Two-thirds of the ICC’s €127 million budget is provided by: Japan (€25 million), Germany (€18 million), France (€13 million), UK (€13 million), Italy (€9 million), and South Korea (€8 million). By permitting the ICC’s legally and factually baseless attack on Israel, these allies weaken American security and potentially put American troops at risk.
• Twitter Thread on ICC FIling of Arrest Warrants – Frmr. State Department Attorney and FDD Senior Fellow Orde Kittrie, Post on X, May 20, 2024
• Possible arrest warrants for Israeli leaders expose the utter perversity of the International Criminal Court – Orde Kittrie, New York Post, April 30, 2024
• Letter to the Editor: An Aggressive ICC Puts U.S. Troops in Danger – Orde Kittrie, The Wall Street Journal, May 8, 2024
• Letter to the Editor: The ICC Had Better Be Ready to Reap the Whirlwind – Richard Goldberg, The Wall Street Journal, May 6, 2024
• U.S. Legislators Push Back Against Possible ICC Warrants for Israeli Official – FDD Flash Brief, May 1, 2024
• The International Criminal Court and Israel – WSJ Editorial Board, The Wall Street Journal, April 26, 2024