President Joe Biden’s criticism of the International Criminal Court prosecutor’s decision to apply for arrest warrants for those responsible for alleged war crimes and crimes against humanity in Israel and Gaza is unwise and undermines U.S. credibility.
Last week, ICC prosecutor Karim Khan announced that he was applying for arrest warrants against three Hamas leaders and two Israeli officials relating to the Oct. 7 attacks in Israel by Hamas and Israel’s response. This conflict has roiled the international community and deeply traumatized Israelis and Palestinians.
Biden called the prosecutor’s application for arrest warrants “outrageous” and suggested that it indicated some kind of “equivalence” between Israel and Hamas. Nothing could be further from the truth. International criminal law never compares people to each other; it compares people’s actions to legal rules.
While today the U.S. objects to the possibility of ICC investigations into the situation in Gaza, justice is not a pick-and-choose system. The law must be applied impartially to all. The U.S. should not stand behind the court when it issues warrants against U.S. adversaries such as Russia and then seek to retaliate against it for pursuing warrants in a situation in which a U.S. ally is concerned.
This issue is not new to the ICC. The state of Palestine formally became a party to the Rome Statute, which created the ICC, in January 2015. (We use the term “state of Palestine” in line with the legal terminology used by the ICC.) In May 2018, Palestine asked the ICC prosecutor to investigate possible crimes within the ICC’s jurisdiction in Gaza, the West Bank and East Jerusalem. In February 2021, the ICC found that it had jurisdiction over “Gaza and the West Bank, including East Jerusalem.” Legally, this means the ICC currently has the power to investigate and prosecute alleged atrocity crimes committed by anyone in those areas, plus any crimes committed by Palestinian nationals outside those areas, including in Israel.
In recent years, the ICC has confronted opposition to its work, and the U.S. has shown that it can be a force for justice and accountability. Take the situation in Ukraine. In response to Russia’s invasion of Ukraine and the ICC prosecutor’s investigation into atrocity crimes there, Congress made it easier for the U.S. to provide information to the ICC, and members of both parties criticized the Department of Defense for not cooperating more with the ICC.
Eventually, Biden ordered the Pentagon and others to fully cooperate with the ICC. The U.S. recognized the ICC’s obvious independence and competence, and the ability of the U.S. to play a positive role in international criminal justice even though it is not a state party of the ICC. In contrast, Russia has attempted to intimidate the ICC prosecutor, to no avail. Khan has been indicted by the Russian Federation for requesting an arrest warrant against Russian President Vladimir Putin for alleged atrocity crimes against Ukrainian civilians, a move widely denounced but one that has not affected the prosecutor’s pursuit of justice in any way. Biden called the ICC arrest warrant for Putin “justified” and applauded the move.
The ineffective and misguided U.S. response to the situation in Afghanistan should not be the precedent the U.S. follows this time. In response to the ICC’s investigation into atrocity crimes in Afghanistan, members of Congress threatened the ICC and its personnel. In 2020, then-President Donald Trump actually imposed sanctions against ICC prosecutor Fatou Bensouda and one of her aides. A public outcry ensued in the United States and abroad. Eventually, the sanctions were the subject of two lawsuits in the United States, one of which granted a temporary restraining order on the grounds that the sanction order was so sweeping in its provisions that its application was in likely violation of the First Amendment. The sanctions (which were dropped under the Biden administration) backfired.
While they undeniably inconvenienced the ICC prosecutor, ICC investigators were undaunted in their work and the ICC’s reputation was strengthened, not diminished, as they continued to do their jobs despite U.S. pressure. Indeed, in that instance, Secretary of State Antony Blinken stated that while the U.S. disagreed with the ICC’s investigation in Afghanistan, the best way to address U.S. concerns was through dialogue, not sanctions.
Likewise, the threat of sanctions around the investigation into the situation in the state of Palestine clearly has not daunted Khan, who has demonstrated courage and independence. Khan and his team knew the risk of U.S. opposition and took it anyway because the job that they accepted was to be independent and impartial in the pursuit of their mandate. As the independent panel of experts that reviewed the evidence underlying the prosecutor’s application recently wrote, there are reasonable grounds to support the allegations of war crimes and crimes against humanity in the proposed arrest warrants. Moreover, as they note, the law being applied is “humanity’s law, not the law of any given side,” that protects all the victims of this conflict and “all civilians in conflicts to come.”
To be sure, there will be many difficult issues ahead if the ICC investigation proceeds. It is far too early for us to take a position on these issues. But we are certain that all parties, prosecution, defense and victims, will have every opportunity to make their case in the ICC.
As Gen. Wesley Clark wrote in his critique of the Trump sanctions, the “United States benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law.”
The United States must not try to manipulate the rule of law to benefit itself or its allies. Experience has shown that this is not only wrong, but it is also unproductive. The ICC — an independent, permanent judicial institution whose only mandate is to pursue the worst international crimes — must be left alone to do its work free from interference or threats.
Patrick Keenan is a professor at the University of Illinois College of Law. Leila Sadat is a professor at Washington University in St. Louis School of Law and a former special adviser on crimes against humanity to the ICC prosecutor.
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