Prosecuting Netanyahu Has Risks for International Criminal Court
U.S. support for ICC, which grew with Ukraine investigation, is collapsing after prosecutor targets Israeli leaders
WSJ
The International Criminal Court in The Hague, Netherlands. PHOTO: PIROSCHKA VAN DE WOUW/REUTERS
WASHINGTON—For more than 25 years, the U.S. relationship with the International Criminal Court has veered between idealistic support to outright hostility, with an arm’s length distance being the norm.
Now, with ICC prosecutor Karim Khan announcing he will seek charges against Israeli Prime Minister Benjamin Netanyahu for the Gaza war a year after obtaining an arrest warrant for Russian President Vladimir Putin over Ukraine allegations, the ICC has asserted the independence its framers imagined—at the likely cost of practical support and diplomatic legitimacy that only superpower backing can bring.
Just weeks ago, the ICC, which for years had been shunned by Republicans and viewed skeptically by many Democrats, was seen in Washington as part of the international effort to hold Moscow to account over its invasion of Ukraine. Sens. Lindsey Graham (R., S.C.) and Chris Coons (D., Del.) worked together to secure U.S. funding for the ICC, something that would have been unthinkable as recently as 2020, when the Trump administration imposed sanctions on the ICC’s then prosecutor for reviewing war-crimes allegations against U.S. forces in Afghanistan.
On Monday, Graham and Coons joined President Biden in condemning Khan’s move against Netanyahu and his defense chief, Yoav Gallant, who the prosecutor alleges committed war crimes and crimes against humanity by using starvation as a tactic against civilians in Gaza. The charges don’t include genocide, although South Africa has made that allegation against Israel in a separate proceeding before a United Nations tribunal, the International Court of Justice.
Khan’s office declined to take questions or make the prosecutor available for an interview.
Israel says it has complied with the laws of war, and that it seeks to keep civilian casualties at a minimum while pursuing legitimate military objectives.
Both senators said that Khan had disregarded the ICC’s statutory obligation to act only when a nation can’t or won’t hold high ranking officials accountable, something they said Israel’s legal system had proven capable of doing.
“Prosecutor Khan is drunk with self-importance and has done a lot of damage to the peace process and to the ability to find a way forward,” Graham said on X.
Coons, who has been critical of some Israeli operations in Gaza, said “the ICC is meant to be a court of last resort only” and had stepped beyond that in targeting the Israeli leaders. “I have long supported the ICC, including in its investigation of Russian war crimes in Ukraine, and I hope to continue working with it if it returns to its legitimate role,” he said.
Matthew Waxman, a Columbia University law professor and national-security official in the George W. Bush administration, said the odds of the U.S. eventually joining the ICC have “gone from very low to zero.”
Karim Khan, prosecutor of the International Criminal Court. PHOTO: PETER DEJONG/ASSOCIATED PRESS
Waxman said Khan’s charges “ignore the nature of this war and the challenges of defeating an armed force that has been embedded in densely populated areas.” Israel, he said, probably could do more to facilitate humanitarian aid to Gaza, but that wasn’t a legal obligation that could give rise to the extraordinary allegations of crimes against humanity that the ICC prosecutor announced.
Under ICC procedures, Khan must obtain approval from a three-judge panel to issue arrest warrants, which he also is seeking for Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif for atrocities in the Oct. 7 attacks on Israel. That panel could act within weeks, and observers expect it to decide on the warrants before the court’s recess in August.
Most U.S. officials had little to say regarding the charges against leaders of Hamas, which the U.S. and European Union designate as a terrorist group. “Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas,” Biden said.
Sen. Bernie Sanders disagreed. “The ICC prosecutor is right to take these actions” against figures such as Putin, Sinwar and Netanyahu, the Vermont independent said. “These arrest warrants may or may not be carried out, but it is imperative that the global community uphold international law.”
President Biden said, “there is no equivalence—none—between Israel and Hamas.” PHOTO: SAMUEL CORUM/PRESS POOL
David Scheffer, who represented the U.S. at the 1998 conference in Rome that gave birth to the ICC, said that Khan had no choice but to pursue the case against Netanyahu.
“For the ICC there may be a risk, but at the end of the day what is the ICC supposed to do?” he said. “Israel here has a rightful exercise of self-defense, a just war,” Scheffer said. “The issue is how do you conduct that just war. Prosecutor Khan is being presented with a scale of atrocity in warfare that is somewhat unprecedented for the ICC prosecutor to be confronted with.”
More than 120 nations belong to the ICC—and provide its roughly $200 million budget—and many of them want to see action against Israeli leaders. Scheffer said: “There is an entire world here beyond the U.S.”
Mary Ellen O’Connell, a professor of international-law at the University of Notre Dame, said that Khan’s move both damaged the ICC’s prospects with the U.S. and set back the odds of ending the conflict more quickly, all with almost no chance of actually putting Netanyahu or the Hamas leaders in the dock.
“I fear the indictment will cause the leaders on both sides to dig in and continue fighting,” because even a peace treaty can’t force the ICC to withdraw its arrest warrants, O’Connell said.
She said that Khan might have a distorted view of his office’s power.
“I see the prosecutor as being within this world of very enthusiastic supporters of the International Criminal Court who want to take action against obvious individuals,” she said. “If you indict Putin, you indict Bashir, how can you not indict Netanyahu and the Hamas leaders?” she said. Omar al-Bashir, the former president of Sudan, remains at large more than a decade after the ICC issued arrest warrants on allegations including genocide.
The ICC emerged from a 1998 conference in Rome backed by the U.S. as an effort to create a permanent court to succeed the United Nations tribunals that prosecuted war crimes in the Yugoslavia and Rwanda conflicts. But the Rome Statute treaty gave the court too much independence for countries seeing frequent military operations to stomach; the U.S. and Russia, along with Israel and China, India and Pakistan, all withheld ratification from a treaty giving a panel of judges in The Hague authority to second guess decisions of their own armed forces.
Still, the court came into existence in 2002, after the Rome Statute was ratified by the necessary 60 countries.
Over the intervening years, U.S. policy toward the ICC depended less on any administration’s conceptual support for international law than political and diplomatic needs of the moment, said Todd Buchwald, a former U.S. ambassador for global criminal justice who worked under both Democratic and Republican presidents.
The George W. Bush administration first treated the ICC as a threat, approving legislation some called The Hague Invasion Act for authorizing military force to free any Americans who might be held prisoner by the court. But the court’s first two prosecutors focused their attention on regional conflicts in Uganda, Congo and other places where atrocities had few implications for the broader world order.
By the second Bush term, the State Department had come to see the ICC as a useful tool to seek accountability for war crimes in Darfur in western Sudan, a crisis Bush took a personal interest in, Buchwald said.
