The risk to the ICC if a warrant is issued for the Israeli prime minister's arrest
The ICC could put itself at odds with the United States and lose all momentum of support from Washington if it passes a warrant for Israeli Prime Minister Netanyahu's arrest.
America's relationship with the International Criminal Court (ICC) over the past 25 years has shifted several times from pro-ideology to outright adversary, and the two extremes are only narrowly separated.
Now, with ICC chief prosecutor Karim Khan announcing that he is seeking an arrest warrant for Israeli Prime Minister Benjamin Netanyahu for his operation in the Gaza Strip, a year after issuing an arrest warrant for Russian President Vladimir Putin over the conflict in Ukraine, the ICC appears to be seeking to assert its independence. But the cost is the loss of the momentum of support and diplomatic standing that only superpowers like the United States can give them.
The United States is not a member of the ICC, but just a few weeks ago, the ICC was seen by Washington as part of an international effort to hold Moscow accountable for its campaign in Ukraine. Republican Senator Lindsey Graham and Democratic Senator Chris Coons joined hands to secure US funding for the ICC
This is hard to imagine when, in 2020, President Donald Trump's administration imposed sanctions on then-ICC prosecutors for reviewing allegations of war crimes against U.S. forces in Afghanistan.
On May 20, Graham and Coons joined President Joe Biden in condemning the ICC prosecutor's actions against Netanyahu and Israeli Defense Minister Yoav Gallant, whom he accused of committing war crimes and crimes against humanity by causing famine and civilian casualties in the Gaza Strip.
Israel insists it remains in observance of the rules of engagement and seeks to minimize civilian casualties while pursuing legitimate military objectives. Graham said the ICC's pursuit of an arrest warrant for a senior Israeli official had "damaged the peace process and its ability to find a way forward."
While he has criticized some Israeli activities in Gaza, Coons said the ICC has "gone farther" than its function by targeting Israeli leaders. "I have long supported the ICC, including investigating Russian war crimes in Ukraine. I hope to be able to continue working with the ICC if they return to their legitimate roles," he said.
Matthew Waxman, a Columbia University law professor and national security official under President George W. Bush, said the likelihood of U.S. joining the ICC has "dropped from very low to zero."
According to him, Israel should do more to facilitate humanitarian aid to Gaza, but that is not a legal obligation that could lead to special charges of crimes against humanity announced by the ICC prosecutor.
Under the procedure, Khan must be approved by a three-judge panel to issue an arrest warrant he is also pursuing against Hamas leaders Yahya Sinwar, Ismail Haniye and Mohammed Deif for atrocities committed during a raid on Israeli territory last October. The council could make a decision in a few weeks.
Most U.S. officials did not comment much on the allegations against Hamas leaders, but Biden stressed that "no matter what the prosecutor implies, there are no parallels between Hamas and Israel."
According to Jonathan Panikoff, director of the Scowcroft Middle East Security Initiative program at the Atlantic Council, based in Washington, the decision to obtain an arrest warrant has inadvertently raised Netanyahu's standing at home as Israelis will rally around him
Netanyahu will likely use the opportunity to declare that he is being "persecuted for defending Israel," an argument that is likely to resonate with a wide public. It gave him even more freedom in decision-making, including launching additional military operations in Gaza, thereby prolonging the conflict.
But David Scheffer, who represented the United States at the 1998 conference in Rome, the birthplace of the ICC, said the agency had no choice but to pursue a warrant for Netanyahu's arrest
"The ICC may be at risk, but what do they do in the end?" he asked. "Israel has the right to legitimate self-defense, a just war. The problem is how to do it. Prosecutor Khan has received information that shows a scale of violence that no ICC prosecutor has ever encountered before."
The ICC has 124 member states, including 33 African countries, 19 Asia-Pacific countries, 28 Latin American and Caribbean countries, 19 Eastern European countries, 25 Western European countries and others. They provide a budget of about $200 million to the ICC, and many of these countries want to see action against Israeli leaders.
During an event in Paris on May 21, Israeli Foreign Minister Israel Katz asked his French counterpart Stephane Sejourne to "clearly declare that prosecutor Khan's decision is unacceptable to the French government, despite the ICC's authority." "This is what Israel's friends have done, and what I expect from my French friends," Katz said.
Earlier in the day, Sejourne said France "recognizes the independence of the ICC" and that whether the warrant for the Israeli prime minister's arrest is approved "depends on the judges of the court." "France supports the ICC, its independence and the fight against immunity in all cases," the French foreign ministry said in a statement on May 20.
France "condemns the anti-Semitic massacre perpetrated by Hamas" and "acts of torture and sexual violence". The French foreign ministry added that it had also warned Israel to strictly abide by international humanitarian law, especially when there are unacceptable civilian casualties in the Gaza Strip and no adequate access to humanitarian assistance.
It is the first permanent member of the UN Security Council to voice support for the ICC, which is conducting an investigation into Israel and Hamas over the Gaza war.
Mary Ellen O'Connell, a professor of international law at the University of Notre Dame, said the ICC's proposed arrest warrant could damage the court's credibility with the United States and undermine prospects for a faster end to the conflict, while the chances of arresting Netanyahu or other Hamas leaders are close to zero.
