Biden and Congress are destroying International Law for Israel

“Let me be clear, we reject the ICC’s application for arrest warrants against Israeli leaders,” U.S. President Joe Biden told his audience at a Jewish American Heritage Month event at the White House on Monday. 

Biden criticized the request for arrest warrants as creating a “false equivalence” between Israel and Hamas. By making that statement, Biden took a clear stance against the rule of law, under which any party, regardless of any other status, must be dealt with the same way. 

He also clarified again, if anyone was still unclear on the point, that the United States rejects accountability for itself and its allies, but holds rigorous standards in that regard for its enemies. Just over a year ago, Biden said that an ICC arrest warrant against Russian President Vladimir Putin was “justified” because he had “clearly committed war crimes.” 

The hypocrisy is par for the American course. But Biden is now faced with a dilemma. He and other senior officials in his administration have indicated that they will use more than words in response to the ICC Prosecutor’s request. Some in Congress are essentially calling for all-out war on the Court. But Biden is likely to be reluctant to go that far.

Republicans target the ICC

It had been clear for the past several weeks that the International Criminal Court (ICC) was preparing a case against Israeli leaders, and on Monday, the Chief Prosecutor of the Court, Karim Khan, requested arrest warrants for three Hamas leaders and two Israelis. The Israelis were Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. 

Predictably, both Israeli and American leadership lapsed into hysterics. As usual, Netanyahu immediately labeled the request for the warrants “the new antisemitism.” He also claimed that the Prosecutor “should be worried about his status,” a thinly veiled threat of violence, and that Khan was “turning the ICC into a pariah institution” and was “pouring gasoline on the fires of antisemitism spreading around the world.”

That kind of reaction reflects a profound concern about the charges potentially being brought against him — and it should not be overlooked that his statement did not include a denial of those charges. Netanyahu ran through the entire tired propaganda playbook, yet in doing so, he only highlighted the legitimacy of Khan’s request. But this was far from the beginning of the war on the Court.

Last week, before the warrants had been requested, a group of twelve Republican senators threatened Khan directly in a letter against bringing charges against Netanyahu. The letter was signed by some of the most prominent Republicans in the Senate, including Minority Leader Mitch McConnell, Marco Rubio, Tom Cotton, Ted Cruz, and Tim Scott. 

The letter threatened sanctions against the ICC and Khan himself, saying “Target Israel and we will target you.” This is language that should be more characteristic of the Mafia than of government officials, though increasingly, it is hard to tell the difference. It closed by stating flatly, “You’ve been warned.”

Khan also told CNN’s Christiane Amanpour that a “senior elected official” had told him ‘This court (the ICC) is built for Africa and for thugs like Putin.” It seems likely that such a blunt and racist bit of bullying came from an American leader.

One might believe that this is all just Republicans putting on their usual show, but that isn’t the case this time. In his testimony at a Senate Foreign Relations Committee hearing, Biden’s Secretary of State Antony Blinken told Republican Senator Lindsey Graham that he welcomed the opportunity to work with him on what Graham called a “bipartisan effort to sanction the ICC, not only for the outrage against Israel but to protect in the future our own interests.” 

In fairness, Blinken left the administration a lot of wiggle room in his comments. He later said he wanted to work with Congress on “an appropriate response” to the ICC’s “wrong-headed decision.” He also explicitly defended the decision in the early days of the Biden administration to cancel sanctions that had been enacted by Donald Trump against the ICC Chief Prosecutor at the time, Fatou Bensouda, who initiated an investigation of Israel and Palestine for actions since 2014, as well as of the United States for possible war crimes in Afghanistan. 

Blinken is leaving that wiggle room because he knows that the Republican attempt to bully the ICC, like Trump’s in 2020, is itself a crime — as is always the case when an attempt is made to intimidate a legal official in any jurisdiction. The mobster-style bullying is too blatant for Biden, and risks alienating many of the U.S.’s closest allies. But it is clear that Biden and Blinken fully intend to find a more creative way to press the ICC to deny Khan’s request for arrest warrants or, failing that, to withdraw them.

Divergent American views on the ICC

For Republicans, the thuggery is suitable because they don’t want to work with, much less within, international institutions of any kind in pursuit of American objectives. That holds even if the partnership is advantageous for the United States. Democrats, and certainly Biden, see it differently.

Biden, whose foreign policy thinking was developed at the height of the Cold War and never evolved as times changed, has a stronger desire to maintain international institutions like the ICC. In the more traditional worldview, before the Republican party became what it is today, there was a bipartisan consensus that supported the existence and functioning of the ICC, while keeping the U.S. and its allies outside the Court’s purview. This is what that anonymous leader meant by the ICC being only for Africa.

The idea is to use the Court and similar institutions for American purposes while denying its authority over the U.S. and its allies. Thus, the Biden administration and most in the Washington foreign policy bubble loved the Court when it issued its arrest warrant for Vladimir Putin two years ago. 

In fact, that love remained constant. Just weeks ago, in mid-March, Congress included funding for the ICC in the State and Foreign Operations (SFOPS) bill. Senator Chris Coons, a Democrat and one of Biden’s closest congressional allies, said, “I’m pleased that (the SFOPS bill) includes funding for the International Criminal Court as it continues to pursue charges against senior Russian officials, including President Vladimir Putin, for committing war crimes in Ukraine.”

So, for Biden and Blinken, the question is how to block the ICC when it comes to Israel but give it power when it comes to Russia. The funding itself is one way that could happen. Another is to argue against issuing the warrants for Netanyahu and Gallant at the Court itself. Both Israel and the U.S. could do that, despite not being state parties to the ICC. They could also make their case in public, in the hope of swaying the panel of judges that will decide, likely in the coming weeks, whether to issue the warrants or not.

Destroying international law

As with the case in the International Court of Justice (ICJ) accusing Israel of genocide, the outcome of the ICC process is not going to have any effect on the ground in Gaza. But this drama could have a profound impact on the fledgling structure of international justice.

The entire system of international law, as well as the essential building blocks of some kind of orderly international system, have been under relentless assault for decades. The United States and Israel have been the two most prominent leaders of that assault, which began almost as soon as the end of the Nuremberg trials, which inspired and began the modern form of these structures.

Israel, of course, can no more abide international justice than more blatant authoritarian regimes or other segregated or apartheid states can. Its status as an ethnocracy cannot withstand an impartial and balanced international system. Naturally, its brutal treatment of the Palestinians over the last 76 years and the massive violence it has unleashed on the civilian population of Gaza since October 7 cannot bear the scrutiny of law.

So, it was entirely predictable that the U.S. and Israel would unleash a barrage of rage at the ICC warrant requests. It is also why the warrants and subsequent processes absolutely must proceed in an unhindered and proper manner.

The international system, especially the legal system, is terribly weak. Much work will be needed for it to become a force for justice in the world. Yet that work cannot be successful if people do not have faith in the system.

Few do, and there is little reason they should. Khan may have been offended by the characterization of the Court having been built for Africa and Putin, but that is how it has functioned in reality to date. This is the moment that can start to change. 

If Netanyahu and Gallant face trial at the ICC some of that desperately needed faith could be restored, although there would still be a long way to go. 

But if not, if the Court is intimidated by American threats and sanctions, as it has appeared to be in the past, that might mean the last scraps of hope people have for an international system of justice could disappear. There is a real risk that if the ICC is seen as impotent or unwilling to follow through on the process their own Prosecutor has begun, the entire international system will be left with no hope for legitimacy at all.

Whether it is through more subtle means, as Biden prefers, or the all-out and blatant assault on the rule of law preferred by Republicans, the end result will be the same. This is a moment of truth for the ICC and for international law in general. The world has already failed Gaza, as it has failed Palestine for a century. If there can at least be some justice after the fact, there might at least be something to build a better world on.