Can a U.S. Ally Actually Be Held Accountable for War Crimes in the ICC?

The announcement today that prosecutors from the International Criminal Court are seeking arrest warrants against top Israeli officials, alongside senior officials from Hamas, has triggered a political earthquake amid the ongoing expansion of the Israel offensive in the Gaza Strip.

Top ICC prosecutor Karim Khan's announcement - coming after weeks of rumors that warrants may be imminent - stunned many legal observers of the court.

The news sparked immediate outrage from the U.S. government. Warrants against Israeli leaders would mark a new era for international humanitarian law where even close allies of the U.S. can be held to account for their actions.

The ICC has never indicted a Western official."

The ICC has never indicted a Western official," said human rights attorney and war crimes prosecutor Reed Brody. Up until now, the instruments of international justice have been used exclusively against enemies and outcasts."

Putting Israel in a camp with world outcasts could have grave ramifications for the U.S., a close ally of Israel and chief provider of its weapons and diplomatic cover.

The prosecutor's announcement will likely impact assessments of the legal risks for other states which are supporting or aiding Israel's war in Gaza," said Sarah Knuckey, an expert on international law and professor at Columbia Law School. If there are reasonable grounds to believe that senior Israeli officials are responsible for war crimes, then countries aiding Israel's war in Gaza are at risk of complicity in those same crimes. We may see accelerated efforts in other countries to stop them from selling weapons or providing military aid to Israel."

The announcement from the ICC means that a panel of judges will decide on whether to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, along with three Hamas leaders, Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh. The charged men are accused of several crimes associated with the Hamas attack against Israel on October 7, as well as the subsequent Israeli military offensive in Gaza.

While Hamas is already internationally isolated, the political ramifications of the charges are potentially grave for Israel. Decades of subjugating Palestinians under a military occupation has led to widespread criticism of Israel, with its conduct during the current war increasingly pushing it toward becoming a pariah.

An issuance of warrants by ICC judges for the arrest of Israeli and Hamas officials - highly likely following the recommendation of its chief prosecutor -would make the world a much more hostile place for Israeli officials accused of crimes by the institution.

All of the 124 countries that are parties to the Rome Statute are legally obligated to cooperate with the ICC and must arrest anyone on their territory that is subject to an ICC arrest warrant," said Knuckey. This would significantly curtail the ability of the suspects, including Prime Minister Netanyahu and Defense Minister Gallant, to travel abroad and participate in international events."

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Legal experts also expressed surprise that Khan, seen as close to the foreign policy interests of Western states and even said to be a favorite of Israel, wound up being the one to pull the trigger on one of the most consequential announcements in the history of the ICC.

Palestinian efforts to invoke the ICC for alleged Israeli war crimes - including illegal settlements - have gotten the slow walk for almost 15 years under three successive prosecutors," said Brody. There was an assumption that Khan, so quick to indict Vladimir Putin for atrocities in Ukraine, was reluctant, despite his strong warnings to both Hamas and Israel, to actually hold Israeli officials accountable for war crimes."

The request for arrest warrants comes against the backdrop of a devastating war in Gaza that has already killed tens of thousands of civilians and destroyed the physical infrastructure of the territory. The World Food Programme assessed that parts of Gaza are now in a state of full-blown famine," owing largely to Israel's attempts to block the provision of humanitarian aid.

The war has triggered an outpouring of condemnation of Israel, including denunciations by several European, Asian, and Latin American countries, as well as mass protests across the globe, including in the United States.

The Israeli government has already been hit with genocide charges at the International Court of Justice, or ICJ, over its conduct in the war. Additional charges at the ICC by Khan will increase pressure on the Israeli government, even as it vows to press ahead with the conflict.

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It's hard to know exactly what forced his hand," said Brody, but I think that the overwhelming evidence of Israeli war crimes, the growing global condemnation of Israeli actions and the ICC's inaction, and the ICJ's decision that there was a plausible violation of the genocide convention all played a part."

I was at the ICC assembly in December as Khan and his team came in for intense criticism from many quarters," Brody added.

The U.S. government has already attacked the ICC allegations against Israel.

The ICC prosecutor's application for arrest warrants against Israeli leaders is outrageous," President Joe Biden said in three-sentence statement. And let me be clear: whatever this prosecutor might imply, there is no equivalence - none - between Israel and Hamas.We will always stand with Israel against threats to its security."

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Secretary of State Antony Blinken said that the U.S. fundamentally rejects" the accusations against Israel, also decrying an equivalence of Israel with Hamas."

The U.S. is not a party to the Rome Statute, the treaty that established the ICC, and in the past has threatened and even sanctioned prosecutors associated with the court who have attempted to investigate allegations of war crimes against U.S. military officials. Israel is also not party to the treaty.

There may be limits to how much the U.S. can do to protect Israeli officials, short of campaigning to destroy the ICC and unwind the infrastructure of international law globally.

How governments react to today's announcement will be a test of the genuineness of their commitment to international justice for all."

Despite condemnations by the U.S., other states have issued statements welcoming the ICC announcement, including Ireland, a critic of Israel within the European Union, whose foreign minister called on other countries to respect the independence and impartiality" of the ICC while condemning threats to the court and its staff. The issuance of warrants against Israel, over the objections of its most powerful superpower patron, will likely be a watershed moment for the ICC as it seeks to establish a reputation as a consistent force for the application of international law globally.

The ICC, and international justice in general, are often critiqued for being selective, or imperialistic, or reflecting the geopolitical interests of powerful states," said Knuckey, the Columbia law professor. Today's announcement may help to rebalance international justice, and sends a strong message that all governments must comply with international law."

She added, Many Western states were very supportive of arrest warrants for Russian President Putin for his crimes in Ukraine. How governments react to today's announcement will be a test of the genuineness of their commitment to international justice for all."

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