Pearls and Irritations

Washington’s attempts to attack and impair the workings of the ICC on Israel’s behalf merely serve to further isolate a declining America.

It would be an understatement to describe the relationship between the United States and the International Criminal Court as anything other than dysfunctional. Of the 124 countries that have signed the Rome Charter of 1998 giving the body its jurisdictional scope, the US is not numbered among them, despite playing a central role in creating it. Imperial habits die hard.

Overt institutional hostility to the ICC was enshrined by the American Service-Members’ Protection Act, a 2002 statute that prohibits federal, state and local governments from aiding the ICC in any way while authorising the US president “to use all means necessary and appropriate to bring about the release” of any “US person” or “allied persons” detained or imprisoned by, on behalf of, or at the request,” of the ICC.

Throughout its existence, Washington has deemed it appropriate to threaten, hector and question the functions of the world’s criminal court. In June 2020, President Donald Trump implemented an executive order specifically designed to hobble the institution. The order authorised the blocking of assets and imposed family entry bans into the US of court officials in response to the prosecutor’s efforts to investigate the alleged commission of war crimes in Afghanistan by US personnel. In September that year, pursuant to the executive order, targeted sanctions were imposed on then ICC prosecutor Fatou Bensouda and senior prosecution official Phakiso Mochochoko.

Since 2021, the ICC has been preoccupied with examining alleged war crimes committed by both the Israeli Defence Forces and Palestinian militants stretching back to the 2014 Israel-Hamas war. “Upon the commencement of my mandate in June 2021,” ICC Prosecutor Karim Khan states, “I put in place for the first time a dedicated team to advance the investigation in relation to the Situation in the State of Palestine.” Its mission is to collect, preserve and analyse “information and communications from key stakeholders in relation to relevant incidents.”

Israel’s brutal campaign in Gaza, waged in response to the attacks by Hamas last October 7, has also excited further interest in the ICC’s role. In November 2023, Khan’s office received a referral from South Africa, Bangladesh, Bolivia, Comoros and Djibouti to investigate “the Situation in the State of Palestine.” The referral requests the prosecutor “to vigorously investigate crimes under the jurisdiction of the Court allegedly committed” on various grounds, including, among others, the unlawful appropriation and destruction of private and public properties, the forcible transfer of Palestinians, the unlawful transfer of Israel’s population into Occupied Palestinian Territory and a discriminatory system amounting to apartheid. South Africa was even more specific in its request that the prosecutor “investigate the Situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”

In late October 2023, Israel announced that it would prevent Khan from entering Israel, signalling its intention to frustrate, as far as possible, the investigative functions of the office. Israeli Prime Minister Benjamin Netanyahu has also promised Israel would “never accept any attempt by the ICC to undermine its inherent right of self-defence.” Any “threat to seize the soldiers and officials of the Middle East’s only democracy and the world’s only Jewish state” was nothing less than “outrageous.”

Despite such defiant bluster, the Netanyahu government is worried. On April 24 this year, Israel’s Channel 13 revealed that National Security Advisor Tzachi Hanegbi had chaired a secret session which considered the prospects of arrest warrants being issued against Netanyahu, Defence Minister Yoav Gallant and the Army Chief of Staff Herzi Halevi. To prevent such an eventuality, the NSC agreed that Netanyahu would relentlessly lobby his international counterparts and put pressure on the Biden administration, involving Israel’s ambassador to Washington, Michael Herzog.

Details of such pressure were also confirmed by Axios, which revealed in a report that Netanyahu had requested US President Joe Biden to prevent the ICC from issuing arrest warrants against senior Israeli officials. A broader lobbying effort of the US Congress by the Netanyahu government had also commenced with vigour.

Enlisting US help was always on the cards. Washington openly repudiates ICC jurisdiction over the Palestinian territories, a source of much comfort to policy makers in Israel. The ICC, on the other hand, has perfectly good grounds to exercise it, given its acceptance by “the Government of Palestine” and its accession to the Rome Statute in January 2015.

With Israel’s cry for help to its most powerful ally, US politicians wasted little time exerting some muscle. On May 1, a bipartisan group of US senators held a virtual meeting with senior ICC officials, expressing their concern that arrest warrants for top Israeli officials were being contemplated. No express details were disclosed for reasons of confidentiality, but the senators were keen to make their opinions felt.

A threatening letter from a dozen Republican senators led by Tom Cotton promised retaliatory action against Khan and his office in the event arrest warrants were issued against Israeli officials. “Target Israel, and we will target you,” came the menacing tone of the note. The issue of such warrants would be “illegitimate and lack legal basis, and, if carried out, will result in severe actions against you and your institution.” They would “not only be a threat to Israel’s sovereignty but to the sovereignty of the United States.” The letter also references the American Service-Members’ Protection Act, which effectively binds the US to deny the ICC any jurisdiction over the officials and soldiers of its own allies.

On May 3, officials from the ICC openly reproached efforts to tamper and modify any opinions on the part of the body regarding its activities. The ICC welcomed, according to Khan, “open communication” with government officials and non-governmental entities, and would only engage in discussions so long as they were “consistent with its mandate under the Rome Statute to act independently and impartially”.

For Khan “independence and impartiality are undermined … when individuals threaten to retaliate … should the office, in fulfilment of its mandate, make decisions about investigations or cases falling within its jurisdiction”. He demanded that “all attempts to impede, intimidate or improperly influence its officials cease immediately.”

Israel is rapidly morphing into a pariah state, increasingly snared by principles of international law and what can only be described as a legal encirclement. The wave against impunity is proving powerful. Washington’s attempts to attack and impair the workings of the ICC on Israel’s behalf merely serve to further isolate it. Time, it would seem, to cut the cord.

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