Analysis: The International Criminal Court’s battle with Israel is a test of the international order

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From the moment the news broke, the wagons were circled. Israeli officials and their allies in Washington expressed outrage over the decision by Karim Khan, chief prosecutor of the International Criminal Court, to apply for warrants for the arrest of three key leaders of militant group Hamas, as well as Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for alleged war crimes and crimes against humanity in their conduct of the ongoing battles over Gaza.

The Hamas figures – Hamas leader Yehiya Sinwar, Izzedine al-Qassam Brigades leader Mohammed Diab Ibrahim al-Masri and Hamas political chief Ismail Haniyeh – were recognized for their roles in the group’s Oct. 7 attack on Israel, which saw indiscriminate slaughter of civilians, the abduction of hostages, torture and other “inhumane” acts. But Khan holds Netanyahu and Gallant culpable for other horrors that ensued.

“Khan said his office had reasonable grounds to believe that Netanyahu and Gallant were responsible for crimes including starvation of civilians as a method of warfare, willful killing and murder, intentionally directing attacks against a civilian population, and extermination,” my colleague Louisa Loveluck reported. These occurred, Khan said, after the imposition of a “total siege” of Gaza that involved “completely closing the three border crossing points, from 8 October 2023 for extended periods, and later, by arbitrarily restricting the transfer of essential supplies.”

The ICC’s pretrial chamber is now considering Khan’s application, and the timeline for its decision is unclear. While the issuance of warrants for the Hamas leaders would not be a surprise, warrants for Netanyahu and Gallant would leave the two Israelis liable for arrest in the 124 countries that comprise the court’s member states (neither the United States nor Israel are signatories of the Rome Statute, the document upon which the court is founded). That in and of itself would mark a bombshell moment for the court, which has issued warrants for warlords and tyrants outside the West, including Russian President Vladimir Putin, but rarely pursued elected leaders backed by a host of Western governments.

Not long after Khan publicized his request, the Biden administration signaled that it would back bipartisan efforts in Congress to slap sanctions on the ICC. In doing so, it would be following in the footsteps of the Trump administration, which in 2020 imposed sanctions on two officials of the court, including its chief prosecutor at the time, for their attempts to prosecute U.S. military and intelligence personnel involved alleged abuses in Afghanistan. Those were lifted by President Biden the following a year. But on Monday, he denounced the implication that there’s an “equivalence” between Israel and Hamas and insisted that what was happening in Gaza “was not genocide” – a reference to parallel investigation at the International Court of Justice triggered by a South African-led case against Israel.

European governments had more muted reactions to the developments. Countries including France and Germany issued statements backing the independence of the ICC. Others – like Spain, Belgium and Switzerland – were even more emphatic in their support.

Khan’s move ends a brief moment of enthusiasm in Washington for the ICC, which was lauded by U.S. lawmakers in its investigation and pursuit of Russia for war crimes in Ukraine. In his statement outlining the request, Khan stressed that the court had no choice but to consider the Israeli leadership’s role in the hideous conflict, given the evidence it had collected indicating that the harm inflicted on civilians in Gaza was both intentional and systematic.

More than 35,000 Palestinians – many of them women and children – have been killed during Israel’s brutal campaign across Gaza, which has leveled much of the territory, triggered a man-made famine in certain areas of Gaza and a sprawling humanitarian crisis unprecedented in its joint scale and speed. Given the lack of any internal movement within Israel to investigate Netanyahu and Gallant on alleged war crimes, including using starvation as a method of war, Khan thought it right for the ICC to press ahead, much to the fury of the Israeli prime minister and the country’s political establishment.

“If we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse,” Khan said. “In doing so, we will be loosening the remaining bonds that hold us together, the stabilizing connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.”

A host of analysts and legal experts concurred. “For the ICC there may be a risk, but at the end of the day what is the ICC supposed to do?” David Scheffer, who represented the U.S. at the 1998 conference in Rome that led to the ICC’s creation, told the Wall Street Journal. “Israel here has a rightful exercise of self-defense, a just war,” he said. “The issue is how do you conduct that just war. Prosecutor Khan is being presented with a scale of atrocity in warfare that is somewhat unprecedented for the ICC prosecutor to be confronted with.”

“This is not about drawing a moral equivalence between Hamas and Israel,” noted Dov Waxman, a professor of Israel studies at the University of California at Los Angeles. “It is about upholding international law and holding decision-makers accountable.”

Agnès Callamard, secretary general of Amnesty International, said in the statement that the move was “a long-awaited opportunity to end the decades-long cycle of impunity” that she argued Israel enjoys in its occupation of the Palestinian territories “and to restore the credibility of the international justice system as a whole.”

“We are at a pivotal moment for the rules-based international order that the United States tried to build for 70 years,” Dylan Williams, vice president for government affairs at the U.S.-based Center for International Policy, told Time magazine. “The question much of the world is asking is do the laws and processes the United States built apply to everyone equally, or are the United States and its friends exempt?”

On Tuesday, at a Senate hearing, it seemed clear what some U.S. politicians prefer. Secretary of State Antony Blinken decried the ICC’s “wrongheaded decision” and said the administration would consider what punitive measures it can take in the coming months. His remarks were welcomed by Sen. Lindsey Graham (R-S.C.), who called for the leveling of sanctions on the court and made clear what, in his mind, was at stake.

“If they do this to Israel, we’re next,” he said. A chorus of antiwar protesters in the chamber cheered.