The Senate Foreign Relations Committee will vote tomorrow on a House-passed bill to impose sanctions on prosecutor Karim Khan and other International Criminal Court (ICC) officials for abusing their authorities in requesting arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Such sanctions would advance the longstanding American interest in preventing the ICC’s weaponization against the United States and its allies.
Since the ICC’s founding in 2002, every U.S. administration, of both parties, has refused to join the court, fearing the ICC’s politicization and misuse. The American Servicemembers Protection Act, enacted in 2002, provides that “[t]he President is authorized to use all means necessary and appropriate” to protect officials of the United States, and of allies, such as Israel, which are not ICC members, from being “detained or imprisoned by, on behalf of, or at the request of” the ICC.
H.R. 8282, the Illegitimate Court Counteraction Act, would principally impose sanctions on any ICC official engaged in attempts to arrest personnel of the United States or its allies, including Israel, which have not joined the ICC. Such sanctions would be a powerful response to Khan’s repeated discriminatory misconduct in the cases against Israeli officials.
On May 20, Khan requested that an ICC pre-trial chamber approve arrest warrants for Netanyahu and Gallant. Khan principally accused them of intentionally using starvation as a method of war. The claims that Israel has deliberately starved the people of Gaza have been proven false.
President Joe Biden said on May 20 that “the ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous.” Secretary of State Antony Blinken also condemned the application that day, saying the “ICC has no jurisdiction over this matter.”
Blinken explained that Khan violated the ICC’s rules by failing to allow Israel’s legal system an opportunity to conduct its own investigation, whereas in “other situations [Khan] deferred to national investigations and worked with states to allow them to investigate.” Khan has previously closed ICC investigations in deference to national investigations by countries — including Guinea, Kenya, and Uganda — with far less robust judicial systems than Israel’s.
Blinken also questioned “the legitimacy and credibility of this investigation” and said Khan’s requested warrants for Netanyahu and Gallant do “nothing to help, and could jeopardize, ongoing efforts to reach a ceasefire agreement that would get hostages out.”
Khan’s anti-Israel double standard is also evidenced by his failure to request arrest warrants for Iran’s Supreme Leader Ayatollah Ali Khamenei, Syrian President Bashar al-Assad, Chinese President Xi Jinping, or any other Iranian, Syrian, or Chinese official. Unlike the countries they lead, Israel is a democratic nation with a robust and independent judiciary.
The United States, like Israel, has a robust system for self-policing misconduct by its personnel. Yet the ICC has an open investigation of alleged U.S. war crimes relating to Afghanistan, which the court placed on the back burner in 2021. The Military Coalition, a group representing more than 5.5 million current and former U.S. servicemembers, has warned that an Afghanistan investigation “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries.” If the ICC proceeds against Israeli leaders, Americans will likely be next.
Khan’s filings should be treated as what they are: quintessential lawfare. China, Iran, Russia, and various terrorist groups are already waging effective lawfare against the United States and its allies on issues worldwide, including in the South China Sea and at the International Court of Justice. Left unchecked, their lawfare will become an increasingly powerful weapon used by those lawless countries to cripple the law-abiding United States and its allies. A robust response to Khan’s abuses is entirely merited.
Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies (FDD) and a law professor at Arizona State University. He previously served for over a decade in legal and policy positions at the U.S. State Department. For more analysis from the author and FDD, please subscribe HERE. Follow Orde on X @ordefk. Follow FDD on X @FDD. FDD is a Washington, DC-based, nonpartisan research institute focused on national security and foreign policy.
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