What opposing the ICC decision will cost America

International Criminal Court (ICC) Chief Prosecutor Karim Khan has requested arrest warrants for Israeli Prime Minister Netanyahu and Defense Minister Gallant, accusing them of war crimes and crimes against humanity. If the judges approve Khan's request, it will be the first time in the court's history that such a decision is made against political leaders of a U.S. ally. American politicians from both parties have previously lobbied against a potential arrest warrant, even threatening sanctions against ICC members and their families. Despite these pressures, the Prosecutor's decision to pursue arrest warrants presents a significant test for Western countries, especially the U.S., as they risk losing their role as defenders of international law and order to other actors.

Continued Protection of Israel

The Biden administration, which has been reported to lobby the court, unsurprisingly responded to the Prosecutor's request by defending Israel. President Biden stated that the events in Israel do not constitute genocide and that equating Israeli leaders with Hamas leaders is unacceptable. In recent weeks, Biden tried to show some pressure on Netanyahu regarding humanitarian aid by temporarily halting certain weapons shipments. However, despite declaring the occupation of Rafah a red line, Biden approved a new $1 billion arms shipment last week, indicating a reluctance to exert meaningful pressure on Netanyahu. This week, the Biden administration vehemently rejected Prosecutor Khan's application, continuing its policy of shielding Israel from international scrutiny.

President Biden did not just challenge the potential ICC arrest warrants on legal or procedural grounds; he also declared that Israel’s operations in Gaza do not amount to genocide. Washington could have simply argued that the court lacks jurisdiction since neither the U.S. nor Israel recognizes the ICC's authority and are not signatories to the Rome Statute, which established the court. However, the ICC holds jurisdiction over the occupied territories of East Jerusalem, the West Bank, and Gaza since the Palestinian Authority officially accepted the court’s jurisdiction in 2015. Although the U.S. does not recognize Palestine as a state and argues it cannot be an ICC member, the court disagrees, and its rulings are binding for member countries, including many in Europe.

"No Genocide"

The Biden administration not only rejects the ICC’s jurisdiction but also asserts that genocide is not occurring and that any potential war crimes are being investigated by Israel’s domestic legal system. The belief in Israel’s capability to investigate its own military’s war crimes, despite evidence of humanitarian aid not reaching its intended destinations, demonstrates the administration’s determination to overlook ground realities. By equating the arrest warrants against Israeli and Hamas leaders, the U.S. administration appears to justify war crimes in response to the October 7 attacks.

Biden’s alignment with Netanyahu's political fate is a significant risk, especially given his continued support for Israel despite objections from within his party. Notably, Senator Bernie Sanders, who acknowledges the legitimacy of operations against Hamas, opposes military and financial aid to Israel and supports the ICC’s decision. Sanders' stance could critically impact the November elections due to his influence among progressives within the Democratic Party.

Contradictions in International Law

Biden’s support for Ukraine against Russia on the grounds of international law contrasts starkly with his backing of Israel’s actions in Gaza, revealing a double standard. While the power dynamics favoring the strong over justice have long been acknowledged, the extent of America's isolation and lack of diplomatic creativity regarding Israel is unprecedented. Previous U.S. administrations did not find themselves constrained by the policies and parameters set by Netanyahu and pro-Israel lobby groups. In relinquishing the West’s moral leadership, the Biden administration may inadvertently benefit rivals like Russia and China.