After months of mounting tension, the International Criminal Court in The Hague announced the filing of arrest warrant requests relating to the war in Gaza — or as the ICC revealingly puts it, “the Situation in the State of Palestine.” The court seeks the arrest of Hamas leadership for a long list of war crimes, but the big news is that the ICC also wants to place Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant in the dock. The prosecutor says that there is credible evidence to believe they are guilty of murder, intentionally targeting civilians, as well as starving them.
Although this bombshell was anticipated, it nevertheless exploded across the world stage. The State Department was quick to denounce the ICC’s “shameful” placing of Hamas and Israel on equal footing, while noting that the court “has no jurisdiction over this matter.” The ICC’s move couldn’t come at a worse time for the Biden administration, with the Democrats deeply divided over the war in Gaza in an election year. Meanwhile, House Republicans are contemplating sanctions against the ICC for its move to prosecute Netanyahu.
The irony here is that Washington bears a great deal of responsibility for this embarrassing predicament, where United Nations-style justice-seeking efforts collide with a major U.S. ally. As this column predicted three months ago, “Balkan ghosts” have come back to bite the Biden White House — hard.
However much Team Biden may object to the ICC’s move against Israel, The Hague is only in the position to do this because Washington strongly backed the concept of “UN justice” in the 1990s, at its foundation. It began in 1993 with the establishment of the International Criminal Tribunal for the former Yugoslavia in The Hague, the awkwardly acronymed ICTY, to mete out justice in the bitter Balkan wars of that decade. The following year, the U.N. authorized a similar tribunal for the Rwandan genocide.
However, the ICTY was Washington’s focus, with the full support of President Bill Clinton’s administration. The Hague’s legal efforts to arrest and prosecute Balkan war criminals served to underpin U.S. policy toward the ruins of Yugoslavia, justifying NATO’s intervention in the Bosnian war in 1995, then in the Kosovo war four years later.
The might of the Pentagon and U.S. intelligence were placed at the ICTY’s service, with energetic hunting of war crimes suspects. I was involved, and my efforts helped put several PIFWCs (Persons Indicted For War Crimes, another regrettable acronym) in the dock in The Hague. ICTY prosecutions sometimes relied on legal novelties just as the concept of the “joint criminal enterprise,” which, in the manner of American RICO laws, convicted defendants for war crimes which they had no direct involvement in.
The Srebrenica massacre of mid-July 1995, where Bosnian Serbs killed some 8,000 Bosnian Muslims, including many civilians, was an ICTY centerpiece resulting in numerous convictions. Down to its dissolution in 2017, the ICTY convicted 90 defendants on war crimes charges, with the vast majority of them, 62, being Serbs, while 18 were Croats and only five were Muslims. The court’s bias was an irritant from the start, and Serbs never viewed it as an impartial effort.
Importantly, the ICTY declared the Srebrenica massacre to be genocide, and rejected efforts to question that verdict. The court’s bias helped keep ethnic animosities alive in Bosnia rather than resolve them. It’s still festering today. At the moment, a U.N. effort to declare July 11 as “International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica,” which enjoys the Biden administration’s strong support, has encountered bitter resistance from Bosnian Serbs, who are threatening to secede over the matter, potentially plunging the Balkans into chaos all over again.
The road not taken here was a less biased effort at justice, perhaps along the lines of South Africa’s post-apartheid Truth and Reconciliation Commission. Instead, the “UN justice” approach advocated by Washington in the Balkans only served to continue ethnic strife. It had strong bipartisan support inside the Beltway. While the Clinton administration was in the driver’s seat, many members of Congress of both parties backed the ICTY too. Among them was then-Sen. Joe Biden, one of the biggest Hill hawks when it came to the Balkans and who ranked among the first (and loudest) advocates of U.S. military intervention in Bosnia against the Serbs.
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Few in Washington pondered the long-term implications of the ICTY’s approach to resolving Balkan troubles. The ICC was established in 2002, in large part based on the perceived successes of The Hague with dispensing Balkan justice. That model was then given global purview. While the Pentagon was careful to keep the U.S. military out of the ICC’s jurisdiction, our allies are not so fortunate.
Israel’s defensive war against Hamas, which that terrorist organization started on Oct. 7 by killing over a thousand Israelis, most of them civilians, has now been portrayed as a criminal enterprise by the ICC. Israelis now may feel some sympathy for the Serbs, who experienced decades ago the lawfare they are enduring now. What the Biden administration does next as the ICC pushes to criminalize Israel’s defense of its citizens is anybody’s guess. The road from Gaza to The Hague runs through Washington, thanks to those Balkan ghosts.
John R. Schindler served with the National Security Agency as a senior intelligence analyst and counterintelligence officer.