The International Criminal Court has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for alleged “war crimes” in Gaza. Israeli officials denounced the ICC’s move as inherently political and antisemitic. The court’s decision is both of those things, but it also poses a threat to U.S. national security.
No other nation has been singled out for the ICC’s opprobrium and lawfare as much as the Jewish state. The crimes and human rights abuses of autocracies such as China, Iran, and North Korea, among others, have largely been ignored. But Israel is targeted because the ICC intends to delegitimize the country.
When the court announced in May that it was seeking arrest warrants for Netanyahu and Gallant, international legal expert Eugene Kontorovich rightly warned that the ICC was seeking “to create moral equivalence between Hamas and Israel.”
But there is no equivalence between those who seek genocide and those trying to thwart it. On Oct. 7, 2023, Hamas and other Iranian proxies invaded Israel, perpetrating the largest slaughter of Jewish civilians since the Holocaust. Israel, a democracy surrounded by Iranian-backed terrorist groups that seek its destruction, responded militarily. No serious nation would do otherwise.
Hamas and other Iranian proxies use a strategy of “human sacrifice.” They use hospitals, schools, and civilian communities to hide operatives and munitions and plot and launch attacks. Instead of protecting Gazans from harm, Hamas and its allies intentionally seek their deaths, hoping to use them as a political and diplomatic cudgel against the Jewish state. Regrettably, they’ve been stunningly successful, with many news outlets, nonprofit organizations, and others, including the ICC, overlooking Hamas’s intentions while uncritically quoting unverifiable casualty statistics supplied by the Hamas-controlled Gaza Health Ministry.
Israel has taken steps to reduce and limit casualties, including delaying offensives, overseeing and encouraging civilian evacuations, using certain munitions, and frequently issuing advance warnings before strikes. According to John Spencer, the chairman of urban war studies at the U.S. Military Academy, “Israel has taken more measures to avoid needless civilian harm than virtually any other nation that’s fought an urban war.”
The ICC’s claim that Netanyahu and his former defense minister have committed “war crimes” is baseless. It utterly overlooks the extraordinary measures that Israel has taken to reduce civilian casualties while fighting a perilous urban war in trying circumstances. Further, the ICC’s failure to go after Iran, Hamas’s patron and a key underwriter of the Oct. 7 massacre, is revealing. Instead, the ICC issued an arrest warrant for Mohammad Deif, a Hamas leader who was probably killed in an Israeli airstrike in July. Deif was the sole individual responsible for Oct. 7 and the war that followed to have a warrant issued for his arrest by the ICC — and he’s probably long dead.
The Biden administration has decried the ICC’s decision. It recognizes that the very grounds for the indictments are spurious. Indeed, as David Litman and Karen Bekker of the Committee for Accuracy in Middle East Reporting and Analysis observed, to issue the warrants, the ICC had to “invent two legal fantasies” — it had to pretend that the Palestine Liberation Organization was actually a “state” and had standing, and it had to pretend that Israel was bound by a treaty that it never signed.
Several policymakers, including members of Congress, have suggested that the United States should consider leveling sanctions against the court. Rep. Mike Waltz (R-FL), President-elect Donald Trump’s incoming national security adviser, said the “ICC has no credibility.” Waltz warned that “you can expect a strong response to the bias of the ICC [and the] U.N. come January” when Trump takes office. Incoming Senate Majority Leader John Thune (R-SD) suggested that the Senate should sanction the ICC, following sanctions legislation that the House of Representatives preemptively passed in June, shortly after the court signaled its intentions.
Policymakers are right to express concern. The ramifications of the ICC’s decision extend beyond the Middle East to our own shores.
According to its own rules, the ICC is supposed to act only as a court of last resort — it is only supposed to get involved when a state is unable or unwilling to investigate allegations against itself. Yet, Israel has a robust and independent judicial system — it can, and has, investigated itself. Israel has even jailed former prime ministers. By issuing the warrants, the ICC has shown its hand: It’s not an impartial arbitrator of justice. Rather, it’s willing to engage in lawfare and be weaponized for political ends. And the U.S. is a likely target.
The ICC has set its sights on the U.S. before. In 2020, the courts opened an investigation into the U.S. over alleged “war crimes” during military operations in Afghanistan. The court’s efforts were only thwarted when then-President Trump issued an executive order announcing sanctions against any foreign person found to be investigating U.S. personnel on behalf of the ICC prosecutor.
According to Executive Order 13928, the ICC’s assertion of jurisdiction “constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.” In short: the court’s actions undermine American sovereignty and offer a means for its enemies to attack American service members and our leaders.
The ICC began “investigating” the U.S. over Afghanistan more than 20 years ago, asserting that the U.S. was incapable of investigating itself. And it did so in spite of the fact that the U.S. had refrained from signing the Rome Statute, the foundation of the ICC, citing concerns about sovereignty. In 2002, in recognition of growing concerns, Congress even passed legislation to protect American personnel from ICC actions, prohibit cooperation with the court, and authorize the president to potentially free Americans detained by the institution.
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The ICC has revealed itself to be a malign actor, ignoring the real abuses of totalitarian governments while targeting democracies such as Israel and the U.S. Such threats should not be taken lightly.
The Netherlands, Canada, the United Kingdom, and the European Union, among others, have all said they consider the ICC arrest warrants legitimate and enforceable. The U.S. should put them on notice. Those who count on American friendship and support shouldn’t be supporting lawfare against this nation and its allies. And those who seek to subvert American sovereignty must face consequences.
The writer is a Senior Research Analyst for CAMERA, the 65,000-member, Boston-based Committee for Accuracy in Middle East Reporting and Analysis.