The Biden administration is setting its face against any possible prosecution of members of Israel’s government, amid speculation that the International Criminal Court (ICC) could soon issue arrest warrants over the conduct of the war in Gaza.
“We do not support it,” White House press secretary Karine Jean-Pierre told reporters at Monday’s media briefing, referring to the ICC’s investigation, which encompasses the actions of Hamas as well as Israel. “We don’t believe they have the jurisdiction.”
Neither the United States nor Israel is among the 124 nations who are members of the ICC. And the chances of Israel giving up any member of its government to be prosecuted at The Hague pursuant to a warrant are effectively zero.
But even so, arrest warrants for Israeli officials — perhaps including Prime Minister Benjamin Netanyahu himself — would clearly bolster the case made by the nation’s critics.
At its core, that case is that the Israeli counterattack after the Oct. 7 assault by Hamas that killed almost 1,200 Israelis has been gratuitously brutal and indiscriminate, and that some strikes by the Israeli military, as well as the restriction of humanitarian aid, have violated international law.
Israel’s assault on Gaza is estimated to have killed around 34,000 people.
The speculation that ICC arrest warrants could be imminent adds another ingredient to a volatile mix of American debate about the war in Gaza.
The debate already encompasses college protests against Israel’s actions; growing disapproval, particularly among Democratic voters, of Netanyahu’s actions; and the question of whether President Biden has fully utilized American leverage to rein Israel in.
On the other hand, pro-Israel Democrats as well as many Republicans and independents contend that the biggest danger is Biden getting pulled to the left by pro-Palestinian activists to a point where his supposed “ironclad” commitment to Israel’s security becomes less reliable.
In addition, many Jewish organizations have expressed alarm over rising antisemitism, while voices on the progressive left counter that charges of anti-Jewish bigotry are used to delegitimize criticism of Netanyahu’s policies.
Those fault lines are once again evident in the debate over potential ICC action.
The ICC “is doing their job, which is to hold people accountable for international crimes and war crimes — which the Netanyahu regime and senior members of that government have been doing for months,” said Usamah Andrabi, spokesperson for Justice Democrats, a progressive group.
Andrabi gave little credence to the White House’s argument that the ICC lacks the jurisdiction to investigate the war in Gaza or to prosecute senior Israeli government officials if there is evidence to do so.
“I would question as to why anyone thinks the ICC does not have jurisdiction over the exact sort of crimes that they are supposed to have jurisdiction over — or why those governments who are not part of the ICC have any say as to who is or isn’t part of the jurisdiction,” he told this column.
On the other hand, Democratic strategist Joel Rubin, who served as a deputy assistant secretary of State during the Obama administration, blasted the possibility of the ICC issuing warrants for Israeli government officials as “ridiculous.”
Rubin, who noted that he himself has often been critical of Netanyahu, said that the ICC — as well as the International Court of Justice, which is hearing a separate case in which the government of South Africa has accused Israel of committing genocide — comes with “entrenched biases against Israel.”
For Rubin, “a sovereign country is defending its territory after a terrible terrorist attack. The idea that somehow the people leading the defense of the country that was attacked end up getting charged is a bit too much.”
The debate is also roiling Capitol Hill, where Speaker Mike Johnson (R-La.) called the idea of the ICC issuing arrest warrants against Netanyahu or other Israeli officials “disgraceful” and “an abomination.”
Sen. John Fetterman (D-Pa.), one of the most fervent Democratic voices backing Israel during the conflict, wrote on social media that it would be “a fatal blow to the judicial and moral standing of [the] ICC to pursue this path against Israel.”
Fetterman, who has previously emphasized he wants “no conditions” imposed upon Israel, also called on Biden to “intervene” against the ICC.
It’s not quite clear what form such an intervention would take, though backroom diplomacy seems the most likely route.
There are also some suggestions that American officials believe the idea of arrest warrants is counterproductive to efforts to bring about a cease-fire or hostage deal, or both, in the conflict.
A Monday report from Bloomberg stated that “the U.S. and its allies” were worried that the issuing of such warrants would end up “potentially jeopardizing a deal.”
“The worry is that Israel would back out of a truce if the ICC proceeds with the warrants,” the Bloomberg report added, noting that nations within the Group of Seven, or G7, “have begun a quiet diplomatic effort to convey that message to the Hague-based court.”
As with everything in the conflict there is, once again, disagreement over whether this is a genuine concern or a red herring intended to help quash potential charges.
“If we are saying that somehow arrest warrants from The Hague are stopping Israel from committing to a cease-fire, we are being delusional,” said Andrabi. “Israel has for months stonewalled a cease-fire, killing thousands and thousands of Palestinians and obstructing aid.”
But Rubin countered that: “If your goal is to stop the war … you want to reduce rather than increase the roadblocks to that”
“If you deem every member of the Israeli government a war criminal, you are reducing their incentives to change course,” he added. “You are telling them they can’t defend their citizens and, if they make deals to terminate a conflict, they’re going to go to The Hague. They are damned in both directions.”
The Memo is a reported column by Niall Stanage.
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