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The Biden Administration Must Denounce the International Criminal Court’s Plan to Indict Netanyahu

According to press reports, the International Criminal Court (ICC) in The Hague is preparing to issue arrest warrants for war crimes against Israeli leaders, including Prime Minister Benjamin Netanyahu, over the war in Gaza. Such an indictment would not just further isolate Israel over this war; it also would create a dangerous precedent that could lead to indictments of U.S. officials and servicemembers by this unaccountable and unconstitutional international court.

The Biden administration’s response to possible ICC indictments of Israeli officials has been extremely mild. President Biden dismissed them as “over the top.” White House Spokeswoman Karine Jean-Pierre deflected a question about this issue by saying, “We don’t believe the ICC has jurisdiction. We don’t support this investigation.” House Speaker Johnson said on Tuesday that a Biden official would tell the ICC “to stand down.”

These tepid responses to potential serious abuse by an out-of-control international court suggest the Biden administration would not mind if the ICC indicts Netanyahu and other Israeli officials. If this is the case, this position could come back to haunt the United States and set the stage for future indictment of U.S. officials and servicemembers.

The controversial treaty that created the ICC—the Rome Statute of the International Criminal Court—was signed by the United States during the Clinton administration in 2000. Clinton officials never submitted this treaty for Senate ratification because of concerns about the threat the ICC would pose to U.S. national security and the constitutional rights of U.S. citizens.

According to John Yoo, a law professor at the University of California, Berkeley and former deputy assistant attorney general, the ICC “represents another effort by a global elite — consisting of European governments, international organizations, and their supporting interest groups, academics, and activists — to threaten American sovereignty.”

David Rivkin and Lee Casey, both noted attorneys and former Bush administration Justice Department officials, warned about the creation of the ICC because…

[t]he creation of a permanent, supranational court with the independent power to judge and punish elected officials for their official actions represents a decisive break with fundamental American ideals of self-government and popular sovereignty. It would constitute the transfer of the ultimate authority to judge the acts of U.S. officials away from the American people to an unelected and unaccountable international bureaucracy. As Alexis de Tocqueville wrote in his Democracy in America, “[h]e who punishes the criminal is . . .the real master of society.

Congress in 2002 was concerned that the ICC could be used to arrest and prosecute current and former U.S. officials and servicemembers, often for doing their jobs and carrying out their duties related to warfare. As a result, Congress passed the “American Service-Members’ Protection Act,” which codified protections for U.S. persons and allies from ICC jurisdiction and restricted U.S. involvement with the court. This law was nicknamed “The Hague Invasion Act” because it also authorized the use of U.S. military force to liberate any American or citizen of a U.S.-allied country held by the court.

Also in 2002, the Bush administration unsigned the Rome Statute and declared the United States would not become a party to the ICC. Related to this move, former Under Secretary of State John Bolton conducted a campaign between 2002 and 2004 to negotiate bilateral immunity agreements with more than 100 countries to protect both parties from the ICC’s jurisdiction.

In June 2020, the Trump administration sanctioned ICC officials for their investigations into potential war crimes in Afghanistan by U.S. military and intelligence officials and human rights abuses by Israeli authorities against Palestinians. The Biden administration lifted these sanctions in April 2021.

The ICC is only supposed to have jurisdiction to investigate crimes committed in member states or by the nationals of a member state. Otherwise, the court needs a UN Security Council referral, which is subject to the Permanent Member veto.

However, the ICC got around this limitation to investigate war crimes by U.S. troops in Afghanistan during the Trump administration because Afghanistan is a party to the ICC treaty.

Even more outrageous, the ICC has justified multiple investigations of Israel and Israeli officials because the UN General Assembly unofficially recognized Palestine as a “non-member observer state” in 2014. This illegitimate vote was an attempt to do an end run around the UN Security Council, which has the sole power to admit UN member states.

Despite action by Congress and prior administrations to protect Americans from the ICC, the Obama and Biden administrations have acted as if the U.S. accepts the Rome Statute and made stealthy moves to make the United States an ICC party.

During the Obama administration in 2010, the U.S. attended the ICC’s governing body, the Assembly of States Parties, as an observer state. In 2011, the Obama administration voted in the U.N. Security Council to refer the situation in Libya to the court. Obama officials also supported transferring Congolese rebel leaders to the ICC in 2012 and 2015.

In 2023, President Biden called an ICC indictment of Russian President Vladimir Putin “justified.” In 2023, Biden ordered his administration to cooperate with an ICC investigation of Russian war crimes in Ukraine.

The Biden administration’s lukewarm objection to a possible ICC indictment of Prime Minister Netanyahu and other Israeli officials and its backhanded support for the ICC reflect the strong support of the foreign policy establishment for this court. American globalists never accepted the rejection of the ICC by Congress and previous U.S. presidents and are determined to quietly ease the United States into the ICC. Just like the Paris Climate Accord and the 2015 nuclear deal with Iran (the JCPOA), America’s foreign policy establishment is looking for ways to bypass Congress to make the United States part of an international agreement that is not in the interests of the American people.

Fortunately, several members of Congress have spoken out against possible ICC indictments of Israeli officials. For example, House Speaker Mike Johnson condemned these reports as “disgraceful” and “lawless” and 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.”

President Biden must stand with Israel and against the threat that the International Criminal Court poses to the constitutional rights of Americans by clearly condemning a possible ICC indictment of Israeli officials and declaring that the ICC is an illegitimate court that the U.S. does not recognize.

Biden officials also must stop inching the United States towards acceptance of the ICC and cease their informal support of the court. This means not supporting ICC indictments that may be in line with Biden’s policies, such as recent ICC indictments related to Russia’s invasion of Ukraine. There are other ways to prosecute crimes like this. One example is the International Criminal Tribunal for the Former Yugoslavia, an ad hoc war crimes tribunal that successfully prosecuted genocide and war crimes committed in the Balkans after the breakup of the former Yugoslavia in the early 1990s. This court indicted 161 people, including Serbian Prime Minister Slobodan Milosevic.

Denouncing the ICC and its plans to indict Israeli officials would also be in the personal interests of President Biden and his top national security officials because the precedent of the court indicting Netanyahu and members of his government over the Israel-Gaza War could easily be used by Palestine, Iran, and other U.S. adversaries to seek indictments against Biden officials over this war after they possibly leave office next January. Because Biden officials cannot be sure whether future U.S. presidents will block such indictments, they could severely restrict the international travel of these officials and put them at risk of arrest while traveling abroad—possibly for the rest of their lives.

Fred Fleitz is vice-chair of the America First Policy Institute Center for American Security. He previously served as National Security Council chief of staff, CIA analyst, and a House Intelligence Committee staff member.

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