The International Criminal Court (ICC) might be considering warrants for the arrests of top Israeli officials, including Prime Minister Benjamin Netanyahu.
If it goes through with this, it would be a massive, institutionally suicidal mistake.
The reporting is sketchy, but what’s clear is this: Israeli officials are concerned, for reasons they have yet to disclose, that top prosecutor Karim Khan could seek a warrant for the arrest of Netanyahu and others.
Perhaps something is getting lost in translation. Khan, a U.K. lawyer, is known for his caution. Unlike his predecessor, Fatou Bensouda, who investigated the U.S. and Israel, Khan does not seem to have a profoundly held bias against America and its allies.
But it’s also true that President Biden’s refusal to back Israel to the hilt in its war against Hamas, and his administration’s constant needling of Jerusalem’s conduct of the war, has sent a signal that’s been received by terrorists, rogue states, and multilateral institutions like the ICC beholden to anti-Israel constituencies.
Since October 7, the court has been subject to aggressive lobbying by international NGOs that are viscerally hostile to Israel. And Palestine is a state party to the assembly that oversees the court.
Ideally, the ICC wouldn’t exist. It threatens America’s sovereignty and that of its closest allies — which is why Washington does not regard it as legitimate.
The ICC is supposed to bring cases against individuals whose governments lack the capacity to bring perpetrators to justice. It issued, for instance, a warrant for Vladimir Putin’s arrest.
But unlike Russia, the U.S. and Israel are both rule-of-law-based societies with robust, independent judicial systems, and the two countries abide by exacting standards when it comes to adherence to international humanitarian law.
Bensouda showed what the ICC can do at its worst: The court investigated possible U.S. war crimes in Afghanistan and was also looking into Israeli conduct. These probes were an egregious abuse of power.
The Trump administration first warned her team in private, then brought those complaints public, before finally opting to impose unprecedented sanctions and visa restrictions on Bensouda.
The Biden administration has already signaled that it’s not willing to act with such resolve. One of its first moves in 2021 was to walk back the executive order that enabled the sanctions, a move that Bensouda praised as a “reset.”
Reacting to the reports out of Israel about possible ICC arrest warrants this week, the White House responded in as gentle a manner as possible: It said that America does not believe that the court has jurisdiction in this matter.
Of course, the public doesn’t really know what sort of conversations are taking place behind closed doors. For all we know, U.S. officials could be aggressively lobbying Khan’s team against making this mistake, and one hopes that they are.
The president’s track record is not encouraging, though. Congress, reprising its longstanding role as a bulwark against the ICC, could conceivably step in to force Biden’s hand by passing legislation that codifies the Trump-era sanctions.
Five years ago, John Bolton, the ICC’s critic-in-chief, declared that “the ICC is already dead to us” and laid out an agenda to protect America and its allies from it.
A Netanyahu arrest warrant would put a counter-ICC campaign back on the table — and all but ensure that the next Republican president will prioritize steps to cripple the court. If the court goes after Israel, it stands to reason that Americans will be next.