The ICC seeking arrest warrants for Israeli leaders is a major step forward for international law. US officials’ attacks on the ICC are a major step backward for US global standing.

US president Joe Biden speaks in Nashua, New Hampshire, on May 21, 2024. (Photo by Mandel NGAN / AFP via Getty Images)

“I’ve had some elected leaders speak to me and be very blunt: ‘This court [the International Criminal Court] is built for Africa and for thugs like Putin,’ is what one senior leader told me.”

It’s hard to know what’s more extraordinary: yesterday’s announcement by International Criminal Court (ICC) prosecutor Karim Khan that he was seeking arrest warrants for Israeli leaders, or the above admission, which he made on CNN the same day.

The plan to arrest senior Israeli leaders over the now seven-month-long destruction of Gaza, including prime minister Benjamin Netanyahu and defense minister Yoav Gallant, takes both the court and the world itself into uncharted waters. Whichever leader made that statement to Khan, they weren’t totally wrong, as cynical as it is: for most of its two-decade-long history, the ICC really has been mostly a vehicle to go after tin-pot dictators in Africa and exact punishment on various villains and Western adversaries in the Global South.

By 2014, eleven years into its existence, the ICC had only prosecuted Africans, despite that span of time covering Western-led wars in Iraq, Afghanistan, Libya, Syria, and Palestine. Ten years later, this ratio hadn’t gotten much better: before this announcement, nearly 90 percent of those indicted were from the continent. Israel will be the first Western country, let alone a close US partner, to ever be indicted by the court.

This is a major breakthrough. Two years ago, when there was talk about prosecuting Vladimir Putin and other Russian officials over the invasion of Ukraine, I wrote that while this certainly should happen, the court’s highly selective and inconsistent application of the law carried the risk of making the decision look like little more than geopolitical score-settling against a Western adversary.

With this decision, the ICC puts those concerns to bed and takes a major leap closer to transforming international law and the institutions meant to enforce it into the actual thing its proponents have always said they should be: universal, fair, and blind to politics. In fact, there’s a good chance this indictment would never have happened without the similarly historic warrants issued against Putin last year and the subsequent pressure on the ICC to maintain its legitimacy by making sure that that case was a rule, not an exception.

Already the ICC has come under fire for this announcement, with critics firing a barrage of remarkably similarly attacks as if some kind of memo had gone out: the ICC has no jurisdiction here; this is the handiwork of a rogue, possibly antisemitic, and highly political prosecutor; it created a false “equivalence” between Israeli officials and Hamas, by seeking warrants for the latter at the same time yesterday.

Not one of these holds any water. The ICC plainly has jurisdiction here, since Palestine is a party to the Rome Statute that created the court in the first place (a statute, incidentally, that the US government still hasn’t signed onto). As many have already pointed out, we didn’t hear any of this legal hairsplitting in the Western world last year when the ICC waded into the Ukraine war, where neither the aggressor nor the victim had ever signed onto the 2002 treaty. In fact, its actions were roundly applauded within the United States and by US allies, with President Joe Biden calling it “justified” and one US official rhapsodizing the court made up “part of a larger ecosystem of international justice.”

The idea that Khan is some kind of politically driven zealot vindictively targeting Israel is equally laughable. Khan was nominated by a right-wing (and pro-Israel) British government and was Israel’s preferred candidate for the post. Plus, one of his first acts as ICC prosecutor was to “deprioritize” the court’s investigation into US war crimes in Afghanistan, under US pressure.

The last charge is the silliest one. The idea that indicting Israel and Hamas at the same time is a statement of “equivalence” is as nonsensical as saying that if officers arrest a serial killer as well as someone responsible for a hit-and-run on the same day, the police are making a statement that those crimes are fundamentally the same. In fact, it’s the opposite: by targeting both Israel and Hamas, the ICC is proving that it’s committed to taking an evenhanded application of international law. But it’s true that the two aren’t equivalent: while Hamas’ monstrous rampage killed 767 Israeli civilians, the Israeli government has so far slaughtered at least sixteen thousand Palestinian civilians, by Netanyahu’s own self-serving count (lower than the actual likely number of civilian deaths).

There’s another major significance to the court’s request. Thanks to the brazenly hypocritical, wrathful response to the ICC announcement from US officials (and some US allies), this episode is another, major step in the entirely avoidable process of international isolation and faltering global leadership status of Washington and its Western allies, as well as the Biden administration’s gradual reputational self-destruction.

It’s broadly taken as a given around the world that the response from Republicans — including those who just a year ago applauded Khan for issuing an arrest warrant for Putin and waxed poetic about the ICC’s importance then — would be unhinged. So some of the GOP’s leading lights, including Senator Lindsey Graham and House speaker Mike Johnson, are talking about slapping sanctions on the ICC, with Senator Tom Cotton even threatening ICC officials’ families.

But this kind of talk isn’t limited to the GOP. A host of prominent and even high-ranking Democrats have publicly denounced the ICC’s decision as “trash,” “reprehensible,” “wrong,” and “political,” leading them to double down on their support for Israel’s war.

Even worse, all of this is being backed up and repeated by the Biden administration itself, which at this point seems hell-bent on not just shredding its own public diplomacy strategy, but burning the shredded leftovers into ash. Biden’s state department has questioned “the legitimacy and credibility” of the ICC investigation, while the president himself explicitly said that “we reject” the application for arrest warrants. Earlier today, Secretary of State Antony Blinken confirmed the White House was backing US retaliation against the court, declaring at a Senate Foreign Relations Committee hearing that the administration would “work with Congress, with this committee, on an appropriate response.”

Amazingly, all of this — lobbing threats against the ICC, denying its jurisdiction, preparing retaliation, even describing its indictment as “outrageous” — closely mirrors the apoplectic Russian response to the ICC’s Putin warrant last year. That Biden is doing this high-stakes act of geopolitical seppuku on behalf of not even his own war, but that of a foreign government — and a foreign government that openly disrespects him and is rooting for him to lose in November — makes this even more remarkable.

But then, so deep and integral is US support for the brutality and continuation of Israel’s war that the Biden administration’s attacks on the ICC at this point may well be an act of rational self-preservation. As Johnson put it just hours ago, “if the ICC is allowed to threaten Israeli leaders, ours could be next.”

A consistent pattern throughout this war is that the longer it’s gone on, the legal and political perils for Biden and the United States have not only piled up, but gotten progressively more serious. Netanyahu once said that not even The Hague “will stop us” from continuing to wage Israel’s terrible war. We’re about to find out just how far he and his benefactors in Washington will go to prove that true — and to what depths they’re willing to drag the United States to as a result.

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