The perversity of targeting Israeli leaders for justly attempting, as any other nation would, to free the hostages and prevent future Hamas atrocities is precisely why two decades of US presidents, from both parties, have refused to join the International Criminal Court.
Members of Congress from both parties are making clear that ICC arrest warrants for Israeli officials — a move the court is reportedly considering — would end US cooperation with the ICC and result in US sanctions on ICC officials.
Such warrants would be legally and factually baseless, endanger US personnel and torpedo negotiations to free the hostages and build Middle East peace.
To issue such a warrant, the ICC must find “reasonable grounds to believe that the person has committed” one or more war crimes, crimes against humanity or genocide.
Any such findings against top Israeli officials would be driven by politics, as there appears to be no factual or legal basis for them.
According to John Spencer, chair of urban warfare studies at West Point, “Israel has implemented more precautions to prevent civilian harm than any military in history — above and beyond what international law requires and more than the US did in its wars in Iraq and Afghanistan.”
In addition, issuing arrest warrants for Israeli officials is outside the ICC’s mandate.
The Biden and Trump administrations and over 330 members of Congress from both parties have rejected as illegitimate ICC investigations of the United States and Israel, on the grounds that neither nation is an ICC member.
Furthermore, the ICC is a “court of last resort,” prohibited by its charter from proceeding in any case unless the relevant government is unwilling or unable to police itself.
ICC prosecutor Karim Khan himself has said that “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.”
Indeed, the Israeli government is conducting ongoing “criminal investigations in a number of incidents” of alleged misconduct related to the Gaza war.
Issuing arrest warrants for Israelis would be totally incompatible with both Khan’s statement and Israel’s clear ability and willingness to police alleged IDF misconduct.
As the White House spokesperson said Monday, “the ICC has no jurisdiction in this situation.”
House Speaker Mike Johnson explains that ICC warrants for Israeli officials “would directly undermine US national-security interests” by creating a precedent for “issu[ing] arrest warrants against American political leaders, American diplomats and American military personnel, thereby endangering our country’s sovereign authority.”
Indeed, the ICC is already investigating alleged US war crimes related to Afghanistan.
The Military Coalition, representing more than 5.5 million current and former US servicemembers, warns that investigation “could lead to the arrest, prosecution and detention of American military personnel and veterans in foreign countries.”
Sen. Tom Cotton (R-Ark.) is threatening ICC officials with financial sanctions and visa bans if they issue warrants for Israeli officials.
Johnson and several leading Democratic members have signaled their support for such strong consequences.
House members are reportedly now drafting legislation to match Cotton’s bill.
Similar to the Trump sanctions on Fatou Bensouda, who preceded Khan as ICC prosecutor, the bill would block all US financial transactions with designated ICC officials, and revoke the US visas of such officials and their immediate family.
According to Reuters, Bensouda, who lived in the Netherlands, “abruptly found her bank accounts frozen and credit cards canceled.”
The United States can also halt cooperation with the ICC.
While we don’t provide funding, we do offer intelligence and other practical assistance, which are crucial to the ICC’s ability to operate.
Imposing sanctions and halting cooperation would be consistent with the American Servicemembers Protection Act, which restricts US cooperation with the ICC and authorizes the president “to use all means necessary and appropriate to bring about the release of any person described . . . who is being detained or imprisoned by, on behalf of, or at the request of the [ICC].”
The described persons include both US officials and those of various US allies, including Israel, which have not joined the ICC.
The US and several European allies are reportedly telling the ICC that warrants for Israeli officials would embolden Hamas, Hezbollah and Iran, and thereby make it harder to secure a hostage release and calming of tensions.
Such warrants would also make it harder for Saudi and other Arabs to proceed with normalization efforts.
In light of the stakes, Congress and the Biden administration must continue to use all available legal tools to persuade the ICC prosecutor to refrain from issuing warrants for Israeli officials.
Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies. He previously served for more than a decade as a State Department attorney and policy official.
