The International Criminal Court (ICC) issued an arrest warrant against Russian President Vladimir Putin on March 17, 2023, for alleged war crimes, accusing Russia of forcibly taking Ukrainian children. This warrant received praise and cooperation from world leaders, including the United States, which shared details of the alleged Russian war crimes in Ukraine. Both the ICC and President Biden called the warrant justified.
Yet when the ICC announced that it was seeking arrest warrants for Israeli and Hamas leaders, both for charges of alleged war crimes and crimes against humanity in their conduct in the ongoing Israel-Palestine conflict, the response was less supportive. U.S. President Joe Biden stated the call for an arrest warrant against Israeli Prime Minister Netanyahu was “outrageous” and said the ICC has no jurisdiction over Israel. Members of the U.S. Congress have threatened to retaliate against the ICC by imposing sanctions against court officers and prosecutors.
But they can't have it both ways. The ICC is not recognized by the U.S., Russia or Israel, but since Palestine is a party to the Rome Statute that initially created the court, it has jurisdiction over Palestinians on Israeli territory and Israelis on Palestinian territory. The clear disparity in Biden's and the U.S.’s response to the ICC’s bid to seek arrest warrants for Netanyahu and others versus Putin shows a double standard regarding the rule of international law applied to one’s adversaries compared to one’s allies.
Netanyahu also leveled familiar accusations against the ICC and head prosecutor Karim Khan, claiming that the investigation was the handiwork of a rogue, antisemitic and highly political prosecutor who is “out to demonize the one and only Jewish state." Khan was nominated by a right-wing, pro-Israel British government and was Israel’s preferred candidate for the position. While the accusations were leveled against him, he was not acting alone in his decision to seek arrest warrants.
A panel comprised of eight experts in international humanitarian law and international criminal law was consulted to review evidence of the possible war crimes and unanimously found reasonable grounds that both sides committed war crimes. One panel member was Theodor Meron, a lawyer, judge and professor involved in international politics since 1971. He is also a Holocaust survivor who was in Israel's military service, Israel’s ambassador to Canada and in Israel for its birth in 1948. While Netanyahu is claiming antisemitism as the reasoning behind the investigation, he is ignoring Meron’s place on and contribution to the panel.
Additionally, the arrest warrants are not only for Israeli officials but also for Hamas leaders. By seeking warrants for both Israel and Hamas, the ICC shows a clear commitment to taking an even-handed application of international law. However, this is also a point of contention for the U.S. and Israel, claiming that the act of seeking warrants for both sides implies an equivalence between Israel and Hamas, with Netanyahu going so far as to compare it to issuing warrants for George W. Bush and Osama bin Laden after 9/11. By using U.S.-centric comparisons, Netanyahu reminds U.S. officials that if he can be the subject of an ICC investigation, so can they. The “it could happen to you” rhetoric is fear-mongering, taking advantage of U.S. politicians' fears that the ICC could investigate the United States for their alleged crimes during the war in Afghanistan and Iraq.
Moreover, we should all be able to recognize that the objections to the ICC’s investigations stand in clear opposition to an idea we all should embrace and that the ICC is continuing to work towards, that everyone, even the most powerful men in the world, should be made to stand accountable for their actions. If the U.S. does impose sanctions on the ICC and its personnel, they will continue to push the idea that Western and Western-allied states are on a different level of “equal” than other states.
Acknowledgment: The opinions expressed in this piece are those of the individual author.