Tensions continue to mount both in Washington and Israel over potential arrest warrants from the International Criminal Court for Israeli Prime Minister Benjamin Netanyahu and top Israeli officials related to the ongoing war in the Gaza Strip.
While the court itself has not issued any warrants or commented publicly on reports they are coming, the Israeli government has gone on the defensive, calling them “a historical outrage” that would be an “enduring stain” on humanity. Similarly, the news received a cool response in Washington, with the White House opposing such a move and several lawmakers threatening retaliation if the warrants were filed.
Pro-Palestinian Student Protests
Here’s what to know about the court, its warrants and its tense relationship with the U.S.
What Is the International Criminal Court?
The ICC is a permanent court created through the Rome Statute of 1998. It was created as the court of last resort to prosecute people, including heads of state and senior government officials, for the world’s most heinous crimes. These include war crimes, crimes against humanity, genocide and crimes of aggression. The court is legally independent from the United Nations.
The court is one in a series of legal bodies designed to prosecute war crimes, with the first modern bodies being the tribunals in Nuremberg, Germany and Tokyo. It was born of a necessity for a permanent court to handle prosecutions for such crimes. Prior to its establishment, ad hoc temporary tribunals were assembled during the early 1990s to address regional issues.
How Does It Differ From Other Courts Dealing With International Law?
As one of several legal bodies established in the years since Nuremberg, the ICC differs in three major ways. The first is that it’s permanent and was not created to prosecute one specific regional incident. The court can open investigations and issue warrants for any issue that falls under its jurisdiction. The second difference is that the court can only intervene when national courts are either unable or unwilling to prosecute people. And lastly, the court is treaty-based, with countries that ratify the statute being recognized as member parties. Because the court lacks a police force, it relies on member parties to enforce arrest warrants it issues.
Marina Aksenova, a professor of comparative and international criminal law at IE University and a recognized expert on the court, adds that the ICC is “connected to the United Nations as the U.N. Security Council has the power to refer specific situations to the ICC even with respect to nationals of states that are not parties to the Rome Statute.”
What Has the Court’s Relationship With the U.S. Been Like?
While the U.S. played a key role in establishing the Rome Statute, it ultimately did not ratify it. After former President Bill Clinton signed the statute in 2000, former President George W. Bush rescinded it, sending a note to the U.N. secretary-general informing him of the U.S. decision. The quick reversal stemmed from the growing fear that U.S. troops would be implicated in the court’s investigation of war crimes in Afghanistan.
In recent years, America’s stance on the court has been a mix of acceptance and rejection. The administration of former President Donald Trump refused to cooperate with it and threatened retaliatory steps against its staff and member countries if it investigated the U.S. or its allies. Under President Joe Biden’s administration, the approach has largely been positive, as officials lifted economic and travel sanctions placed by Trump on the court’s prosecutor and another senior prosecution office staffer.
What Do We Know About the ICC’s Investigation Into Israel?
In 2021, the court opened its investigation into Israeli conduct in Gaza, the occupied West Bank and East Jerusalem from 2014 onward. The State of Palestine referred the situation to the court in 2018. In 2019, the court’s former court prosecutor, Fatou Bensouda, announced that her office had determined there was a reasonable basis for an investigation.
Abbas Poorhashemi, president of the Canadian Institute for International Law Expertise, says that after Hamas’ surprise attack on Israel on Oct, 7, “some Member States, including South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, requested a new referral regarding the situation in the State of Palestine.” He adds that the prosecutor then opened the investigation that is currently ongoing.
While Israel is not a member of the court and doesn’t recognize its jurisdiction, the Palestinian Authority joined the ICC as a member in 2015, enabling it to refer the case to the court.
In a comment to U.S. News, the ICC Office of the Prosecutor confirmed that it “has an ongoing independent investigation in relation to the Situation in the State of Palestine.”
“The Prosecutor has addressed the situation in various public remarks and also in official statements at the ICC Assembly of States Parties,” the office says. “He has also underlined that the Office does not give a running commentary in relation to ongoing investigations, nor does the Office respond to speculation in media reports.”
It is believed warrants will be filed for Netanyahu, Israeli Defense Minister Yoav Gallant and Israel Defense Forces Chief of Staff Herzi Halevi, along with leaders of the U.S.-designated terrorist group Hamas.
Jonathan Hafetz, a legal professor at Seton Hall Law School, says he suspects the warrants for Israeli officials “would focus on war crimes and possibly crimes against humanity, rather than genocide, which is far more controversial and harder to prove.”
Hafetz adds that the charges could have a significant impact on public opinion by giving “additional credence to the notion that Israel is committing war crimes in Gaza and branding Israeli officials as alleged war criminals.”
Aksenova says the impact “may even be stronger in the case of European states,” as all European Union member states are signatories to the Rome Statute. As a result, all “would therefore be legally obligated to execute the arrest warrant should Prime Minister Netanyahu choose to travel to these countries.”
How Has the U.S. Been Responding?
Following growing reports of the warrants, Axios reported that Netanyahu made a direct plea to Biden to help prevent the court from issuing the warrants. Since then, the pressure on court officials has increased, ranging from lawmakers in Congress to administration officials.
Republican lawmakers, for example, threatened to pass a bill from GOP Sen. Tom Cotton of Arkansas to sanction the court, while House Speaker Mike Johnson called on the Biden administration to “immediately and unequivocally demand that the ICC stand down” and “use every available tool to prevent such an abomination.”
During a press conference last week, Johnson also said Secretary of State Antony Blinken told him the Biden administration would be publicly calling for the court to stand down. A bipartisan group of senators then spoke virtually with court officials Wednesday afternoon to express their concerns over the warrants.
Democratic lawmakers have lashed out as well, with Sen. John Fetterman of Pennsylvania, a staunch Israel supporter in recent months, calling on Biden to “intervene as part of the administration’s ongoing commitment to Israel.”
Meanwhile, the ICC prosecutor’s office issued a statement Friday calling for the end to “all attempts to impede, intimidate or improperly influence its officials,” saying they undermined the tribunal’s “independence and impartiality.”
Poorhashemi says the pressure exerted by the U.S. on the court is “not entirely unique” as it has “denounced ICC jurisdiction over U.S. citizens and has taken some steps to protect its nationals from ICC investigation and prosecution” since its formation.
Still, Hafetz says the objection is “significant in that it places the U.S. in the familiar position of resisting action by the ICC that it disagrees with or that it views as contrary to its interests.”