James A. Goldston is the executive director of the Open Society Justice Initiative.
Last month, Israeli Prime Minister Benjamin Netanyahu preemptively blasted what some reports suggested were imminent arrest warrants to be issued by the International Criminal Court (ICC) for the leaders of Israel and Hamas. And behind the scenes, 12 Republican U.S. Senators threatened to “target” the ICC prosecutor and his staff with “severe sanctions” and travel bans.
In the days since, the court has rejected attempts to “impede, intimidate or improperly influence” it, but has otherwise remained silent. However, I hope it will act before long.
As someone who has served within the Office of the Prosecutor, and whose organization has worked closely with all organs of the ICC over the years, I’ve seen the court face many challenges testing its stability — whether over indictments of senior figures in Kenya, Libya and elsewhere, or over former U.S. President Donald Trump’s administration sanctioning the court’s then-prosecutor for her Afghanistan investigation (we went to court to challenge those measures).
But the Gaza conflict is different. Failure to hold those most responsible on all sides for the carnage in Israel and Palestine since Oct. 7 would severely damage the court’s legitimacy, as well as that of the “rules-based order” so regularly trumpeted by the U.S. and allied governments.
The hostility of Israeli officials is hardly surprising. Given the added stigma that any ICC charge would attach to a government already blemished by accusations of genocide made before the International Court of Justice, it would be a shock if they didn’t respond with anger. Indeed, Israel has consistently denied ICC investigators access to Gaza or areas of the West Bank since 2021.
More consequential than Israel’s reaction, however, is what the country’s American and European backers say and do. This is what those concerned about “double standards” in the world of international politics and law will be scrutinizing.
Just last year, following Russia’s invasion of Ukraine, members of the U.S. Congress and the administration of U.S. President Joe Biden applauded the ICC issuing an arrest warrant for Russian President Vladimir Putin for war crimes. Republican Senator Lindsey Graham called the indictment “a giant step in the right direction for the international community,” while Biden said the warrant for Putin was “justified.” And in a remarkable shift from earlier antagonism toward the ICC, in late 2022, Congress passed legislation allowing ICC officials to conduct “investigative activities” in the U.S. “related” to Ukraine, even though Russia — like Israel and the U.S. — isn’t a state party to the court.
But now, as the court reportedly prepares to issue warrants for leaders of both Israel and Hamas, the White House has declared “the ICC has no jurisdiction in this situation and we do not support its investigation.” House Speaker Mike Johnson has gone even further, calling on the Biden administration to “immediately and unequivocally demand that the ICC stand down.”
Unlike the U.S., however, ICC members have a legal obligation under the court’s governing Rome Statute to assist in the execution of any arrest warrants. And yet, while EU High Representative Josep Borrell condemned “any kind of intimidation to the International Criminal Court,” initial reports suggest that, some European allies — despite backing ICC investigations in Ukraine — may be working behind the scenes to build diplomatic opposition to any warrants for Israel.
So, what’s changed?
Not the law. Nor the need to hold those responsible for grave crimes to account. Rather, it seems, it’s the players and the politics that are different. Russia is an adversary of the West — Israel an ally.
There are many good questions to ask about ICC decisions to come — their impact on precarious peace negotiations, the need to ensure that crimes against Israeli as well as Palestinian victims are addressed, the value of issuing warrants that are unlikely to be executed any time soon, and the opportunity for Israel to demonstrate that, contrary to past practice, its domestic judiciary is capable of — and willing to — hold senior leaders to account. But what the world won’t accept is impunity for mass slaughter.
There is a political cost to appearing to pick and choose where the law should apply — the difficulty Western leaders have faced in marshalling global backing for their righteous campaign to sanction Russia for crimes in Ukraine is a testament to this. Accusations of hypocrisy are hardly new. But failing to support the ICC in Israel and Palestine will be seen by many as a cynical, self-interested sacrifice of the fundamental principles of justice.
In a world of increasing diversity and multipolarity, a stance of moral abdication regarding the ICC will resonate diplomatically for many years.
In 2002, the last surviving Nuremberg prosecutor Benjamin Ferencz, who passed away last year, had lamented that Washington was making a terrible moral and political mistake by refusing to join the ICC: “What the United States is saying, is that we don’t want the rule of law. I think that is dangerous, very dangerous. Because we cannot lay down a law for the United States and not for the rest of the world. That doesn’t fly. Justice Jackson made that clear at Nuremberg. Law must apply to everyone equally, or it’s not law at all,” he said.
His words ring true today.
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