A chorus of US politicians including President Joe Biden has decried International Criminal Court (ICC) prosecutor Karim A. A. Khan’s decision to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defense minister, Yoav Gallant, alongside three senior Hamas leaders. US officials slammed the ICC’s perceived “equivalence” of Israel and Hamas, the latter of which is a US-designated terrorist organization.

But this is far from the first time that US officials have attacked the ICC. Just this month, a group of four Republican and three Democratic Senators urged US President Joe Biden to “fully implement” a law authorizing the US President to give legal support to or even forcibly free certain allied officials detained by the ICC. Two weeks earlier, 12 Republican US Senators threatened Karim Khan with a ban from the US over concerns that Khan would seek a warrant for Netanyahu’s arrest.

This explainer will briefly describe the strained relationship between the US and the ICC, Khan’s warrant applications, and US officials’ responses.

The US and the ICC: a brief history of tension

The US voted against the adoption of the Rome Statute, the document that laid the groundwork for the ICC, when it was proposed before the UN in 1998. However, the country signed the Rome Statute in 2000 without sending it to the Senate for ratification, signaling limited agreement but meaning that the document has no legal effect in the US. The objections harbored by US politicians toward the statute include the fact that it does not ensure constitutional protections for US citizens and that it may subject countries to its jurisdiction when those countries have not ratified the Rome Statute.

Amid the US’s “War on Terror” following the September 11 attacks, the US Congress passed the American Servicemembers Protection Act of 2002 (ASPA), commonly called the “Hague Invasion Act,” later signed by President George W. Bush. It authorized the president to not only provide legal assistance to US and certain allied government personnel imprisoned by the court but also to “use all means necessary and appropriate to bring about the release” of any covered persons imprisoned by the court. Additionally, the law largely prohibited the US from cooperating with the ICC.

But amid this backdrop of limited hostility, the US has at times worked in concert with the court. The US abstained on a UN vote referring the situation in Darfur, Sudan to the ICC in 2005 and helped spearhead a resolution referring Libya to the ICC in 2011. President Joe Biden authorized the US to share information regarding Russia’s invasion of Ukraine with the ICC in July 2023 after it was reported that the Department of Defense blocked such cooperation in the preceding months. Earlier in March 2023, Biden said of the ICC warrant that was issued against Russian President Vladimir Putin: “Well, I think it’s justified.  But the question is, it’s not recognized internationally by us either.  But I think it makes a very strong point.”

The letters

But when the possibility was raised that an arrest warrant may be issued for Israeli officials over their actions in the Israel-Hamas War, US lawmakers took a different tone. In late April, a group of 12 Republican senators sent a letter directly to Karim Khan threatening to “target” the prosecutor with a ban on travel to the US as well as sanctions directed at his staff and associates if he sought an arrest warrant against Netanyahu and other officials. The letter may have prompted the ICC to issue a statement in the first week of May saying that the court’s “independence and impartiality are undermined … when individuals threaten to retaliate against the court or against court personnel.”

The next week, on May 9, a group of four Republican and three Democratic senators sent a letter to President Biden saying they were “deeply concerned about the ICC’s efforts to politically target Israel.” The letter concluded:

Under the American Servicemembers Protection Act of 2002 (P.L. 107-206), the President is granted broad authorities to respond to these types of actions by the ICC, and we urge you to fully implement the law should the Court move forward with action against Israel. It is critical that you strongly oppose the ICC’s efforts to target Israel and stand firmly with Israel in the face of the Court’s overreach.

Though the letter mentioned the ASPA, it did not prescribe specific ways that the president could aid Israeli ICC defendants.

The warrant applications

After this period of speculation, and amid accusations of genocide and other war crimes being leveled at both participants in the Israel-Hamas War, Karim A. A. Khan announced that he was seeking arrest warrants for Israeli PM Netanyahu, Israeli Defence Minister Yoav Gallant, Hamas leader Yahya Sinwar, Hamas  Commander-In-Chief Mohammed Deif, and Hamas political head Ismail Haniyeh. All five were charged with a variety of war crimes and crimes against humanity, including extermination and murder contrary to the Rome Statute. The charges against Israel’s PM and Defence Minister mainly pertained to their total blockade on Gaza during the early stages of the war and their alleged interference in humanitarian aid delivery. In contrast, the charges against the Hamas leaders center around the October 7 attacks in Israel, the hostage-taking that occurred that day, and the mistreatment of hostages in Hamas custody.

The White House and Capitol Hill chime in

US President Joe Biden, Secretary of State Antony Blinken, and US Senate Foreign Affairs Committee Ranking Member Jim Risch all denounced the ICC prosecutor’s decision in various statements, alongside a number of legislators who did the same. The White House called the Netanyahu and Gallant warrant applications “outrageous” and said “there is no equivalence — none — between Israel and Hamas.” Secretary Blinked stated that the US “fundamentally rejects” the applications, that the State Department “[rejects] the Prosecutor’s equivalence of Israel with Hamas,” that the ICC has no jurisdiction in this case, and that the prosecutor failed to defer to the Israeli justice system and cooperate appropriately with Israel. Ranking Member Risch joined these sentiments in calling the applications “absurd” and saying that Khan is creating “a false moral equivalency” between the actions of Israel and Hamas.

Senator Lindsay Graham similarly labeled the applications an “outrageous decision” and said that he and a group of colleagues “engaged the ICC on this issue weeks ago” and were “told there would be discussions with Israel before any actions were taken.” The senator concluded his preliminary remarks with, “I feel that I was lied to and that my colleagues were lied to. Prosecutor Khan is drunk with self-importance and has done a lot of damage to the peace process and to the ability to find a way forward.”

Senator Tom Cotton, one of the signatories to the letter threatening Khan, released a statement reading:

Equating Israel’s democratically elected leaders with the perpetrators of the worst attack on Jews since WWII shows what a farce the International Criminal Court is. Mr. Khan’s kangaroo court has no jurisdiction in Israel to pursue these anti-Semitic and politically motivated ‘charges.’ My colleagues and I look forward to making sur neither Khan, his associates nor their families will ever set foot again in the United States.”

Senator Marco Rubio, a signatory to both the Khan and Biden letters, released a joint statement with Democratic Senator Jacky Rosen saying that:

We are outraged by this shameful political move by the ICC, which seeks to undermine Israel as it defends itself after Hamas’s brutal October 7th terrorist attack. We’re deeply concerned about the impacts this decision will have on current hostage negotiations and the dangerous precedent this sets given that the ICC has no jurisdiction over Israel. As we emphasized in our letter to President Biden, ‘the President is granted broad authorities to respond to these types of actions by the ICC.’ We now join together to call on him to take swift and forceful action in response to this attack on our democratic ally.

In contrast, Senator Bernie Sanders voiced support for the ICC prosecutor’s applications:

The ICC prosecutor is right to take these actions. These arrest warrants may or may not be carried out, but it is imperative that the global community uphold international law. Without these standards of decency and morality, this planet may rapidly descend into anarchy, never-ending wars, and barbarism.

Rep. Ilhan Omar urged respect for the ICC’s proceedings, saying in part, “The International Criminal Court must be allowed to conduct its work independently and without interference. The application for arrest warrants is merely the beginning of a judicial process. The ICC has been a functioning court – it has seen convictions, acquittals, and dismissals, as we would expect from an impartial and non-political judicial body.”

Conclusion

The US backlash to Karim Khan’s charges against Netanyahu and Gallant signifies a new episode in the frosty relationship between the US and the ICC. The all but-consensus from US officials is that it is wrong for Khan to equate Israeli politicians with Hamas leaders. Notably, we see that the spear-rattling against the ICC that was present during the early years of the War on Terror has come back once again. It will be up to the ICC itself to decide whether to grant or deny Khan’s warrant requests. A warrant issued against a major US ally would place the US and the ICC in uncharted, iceberg-laden waters.