Last week, International Criminal Court Prosecutor Karim Ahmad Khan used an appearance on CNN to unveil requested indictments against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three senior Hamas officials, including leaders in both Gaza and Qatar. The bill of particulars includes accusations of intentional attacks against civilians, starvation as a method of warfare, wilfully killing and causing suffering, and other “inhumane acts.”
The Hamas language also name checks war crimes and crimes against humanity.
The requested indictments—procedurally, Khan’s request must go before a panel of ICC judges for approval—have been praised, excoriated, applauded, and rejected by the usual suspects, each retreating to his respective corner to prep for a well-rehearsed fight. But what acolytes and opponents fail to appreciate is that the hastily rolled-out hopes and dreams of Khan may well constitute the final nail in the coffin for an ill-conceived and fundamentally illegitimate court.
Since the Nuremberg Trials, and possibly before, nations have sought a means of delivering “supranational justice” for so-called crimes against humanity. Indeed, it was at Nuremberg that the phrase was coined in service of describing the Holocaust and its perpetrators. Considering the challenge in that more Manichean context—we know who was right and who was wrong—it is easy to understand why a trial of Nazi engineers of the Final Solution could not be in German courts, should not be in France or England, but needed to belong to “the world.”
There are other reasons, too, why an international criminal court as an idea can be appealing. There are nations where crimes of unimaginable horror have taken place and where justice is unattainable: think Rwanda or Yugoslavia or Sudan. Perhaps the government in place perpetrated those crimes, or the system of government cannot deliver true justice. In such cases, even those for whom sovereignty is tantamount to a biblical commandment, the notion that something labeled “the international community” takes justice into its hands is not entirely anathema.
However, as with almost all such exercises of international cooperation and international justice—the International Court of Justice, the United Nations and its ever-expanding world of specialized agencies, etc.—the reality and the dream occupy different dimensions. And it is the reality of these institutions that has ratified the more paranoid predictions of their detractors.
Setting aside the sad cases of the World Health Organization, the United Nations Relief and Works Administration, the International Organization for Migration, and the poignant tale of the Food and Agriculture Organization’s now-defunct Committee on Soups and Broths, it is the ICC that, thanks to Karim Khan, is back in the crosshairs of American lawmakers.
The history of the ICC is instructive: The court was created in 1998 by a treaty called the Rome Statute. Though deliberations for the treaty took place in the halcyon “end of history” decade of the 1990s, congressional opposition meant that then-President Bill Clinton chose not to sign on to the statute. Truth be told, however, the Clinton team liked the idea. There were any number of wars ongoing, and special U.N. tribunals had already been created with the Clinton administration’s support to address new “crimes against humanity” in the former Yugoslavia and Rwanda. So in the waning days of his administration, Clinton signed the Rome Statute. Bizarrely, he did so at the same time stating he had no intention of submitting the treaty to the Senate for a vote of ratification. Recognizing Clinton’s pseudo-embrace as the empty posturing it was, George W. Bush “unsigned” the Rome Statute.
Were the International Criminal Court not the very institution its detractors described, Bush’s “unsignature” might have been the end of the story. Critics of the court—and the very notion of supranational justice, untethered to any system or rule of law—had always suspected that the powers of the ICC would be corrupted to attack the two bêtes noires of the “international system”—the United States and Israel. Indeed, in a 2002 article in the Israeli newspaper Ha’aretz, then-Chairman of the Senate Foreign Relations Committee Jesse Helms warned that, “The court will have an independent prosecutor answerable to no state or institution for his or her actions, who could one day issue criminal indictments against Israeli soldiers, military commanders, and government officials all the way up to the Prime Minister himself.” And so it was.
At the time of its conception and ever since, defenders of the court have insisted that it would be inconceivable for the ICC’s powers to be directed against democratic Israel or democratic America because neither the United States nor Israel are parties to the ICC, and both have robust judicial systems that, per the Rome Statute, preclude involvement by busybody international bureaucrats. The Rome Statute calls this “complementarity”—the idea that the ICC is bound to defer to the judicial processes of nations with robust and democratic systems of law, and rely on those nations to prosecute their own misdeeds. A pretty neologism, “complementarity” is to the ICC what the Loch Ness monster is to Scotland: a fun idea that draws in fans, even if no one is really sure Nessie is real.
How did this happen? In 2015, the ICC admitted a “State of Palestine.” What is the state of Palestine? An excellent question with an unclear answer. Per the U.N. General Assembly (see: sad cases, above), the “State of Palestine” is the Palestinian Authority in Ramallah, led by Mahmoud Abbas. What is Gaza, effectively led by Hamas? Unclear. It is this pretend “State of Palestine” that requested the intervention of the ICC in the Gaza war, accusing Israel of the crimes now parroted by Khan.
Lest anyone suspect that is the ICC was unable to see beyond the many shady happenings on the continent of Africa—see ICC investigations in Uganda, Democratic Republic of Congo, Sudan, Central African Republic, Kenya, Libya, Cote d’Ivoire, Mali, Burundi—in 2020, the court opened an investigation into United States’ actions in Afghanistan.
The Trump administration took the news that the U.S. war in Afghanistan was under scrutiny by international bureaucrats with its characteristic aplomb and promptly imposed sanctions on ICC prosecutors. Those sanctions appeared to prompt a rethink by the court, which in effect proceeded to dump the case in the circular file. And so we come to Israel.
The requested indictments of Israel and, to Khan, its moral equivalent, the terror group Hamas, were badly received in Washington. President Joe Biden called the application for an arrest warrant for Netanyahu “outrageous” and insisted the United States will “always stand with Israel against threats to its security.” Senate Majority Leader Chuck Schumer, who had only weeks before taken to the Senate floor to denounce Netanyahu, labeled the charges “profoundly unfair” and “reprehensible.” Congressional Republicans echoed the Democrats’ rebukes, and promised action in response.
U.S. law—the American Servicemembers’ Protection Act—already authorizes the use of force to liberate any American or U.S. ally charged by the ICC (hence the nickname assigned to it by the law’s detractors, the “Hague Invasion Act”). But House Speaker Mike Johnson, Sen. Tom Cotton, and multiple others have warned that more legislation may be coming that will impose harsher penalties on the ICC for its extrajudicial pursuit of non-parties to the Rome Statute. Specifically, Cotton warned in a statement that, “Khan’s kangaroo court has no jurisdiction in Israel to pursue these antisemitic and politically motivated ‘charges,’” adding that he looks “forward to making sure neither Khan, his associates nor their families will ever set foot again in the United States.”
Other legislation currently being contemplated goes even further, potentially criminalizing the actions of ICC officials who indict Americans and allies that request similar protection, and providing a right of action—a legal means to sue —against ICC officials in such cases. The Biden administration, likely hoping to head off stronger measures, has told members of Congress that it is open to a response short of sanctions. However, should Donald Trump return to office in 2025, the possibility of actual criminal indictments of Khan and company are all too real.
Khan’s response to these warnings has been intemperate, designed to inflame rather than mollify his opponents. In a press release, the ICC prosecutor threatened members of Congress who promised a legislative response: ICC “independence and impartiality are undermined […]when individuals threaten to retaliate against the Court or against Court personnel should the Office, in fulfillment of its mandate, make decisions about investigations or cases falling within its jurisdiction. Such threats, even when not acted upon, may also constitute an offence against the administration of justice under Art. 70 of the Rome Statute.”
This was unwise.
What happens next? The ICC panel of judges must meet to consider Khan’s request. The prosecutor has worked hard to ensure that they will decide in his favor, skirting normal procedure to publicize “requested” arrest warrants (they are not usually public, let alone revealed on CNN), and accelerating normal court processes, thereby derailing an ICC investigation with which the Israelis were cooperating. (Indeed, investigators were reportedly scheduled to arrive in Israel to inquire into the government’s own investigation of military conduct and compliance with court directives on humanitarian aid and rules of engagement.)
However, should the indictments move forward notwithstanding warnings from the United States, the United Kingdom, and others, then arrest warrants will be issued for Israeli (and Hamas) leaders. These warrants supersede normal strictures that bow to national sovereignty, such as sovereign immunity, head of state immunity, or any other principle of international law. If the indictment is approved, all states parties to the Rome Statute are under legal obligation to arrest the individuals concerned. In an uncharacteristic bow to due process, the ICC does not allow defendants to be tried in absentia.
Will the ICC move forward? Will Congress act against it? We’ll know soon enough. But in the event of further ICC intransigence there is every chance that not only will Congress move to tie the ICC’s hands, replete with the authorization of U.S. arrest warrants for relevant ICC officials, it may well also move to punish parties that cooperate with the court. Well done, Mr. Khan. So much for international justice.
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