Biden Admin and US Lawmakers Weigh in as ICC Prosecutor Seeks to Charge Israeli Leaders

Ryan Morgan
By Ryan Morgan
May 20, 2024Congress
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Democrats and Republicans both strongly condemned the International Criminal Court prosecutor’s request to arrest Israeli leaders. The Biden administration vowed to continue standing with Israel.

President Joe Biden and members of his administration castigated International Criminal Court (ICC) prosecutor Karim Khan for requesting to charge Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant with war crimes and human rights violations in connection with the ongoing Israeli military operations in the Gaza Strip.

Mr. Khan asked the ICC on Monday to let him charge the leaders on both sides of the war, for the outburst of violence in the decades-old conflict between the Israeli and Palestinian people.

“The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” President Biden said in a press statement.

Mr. Khan has specifically asked the ICC to let him charge Hamas political and military leaders for the killings and kidnappings Hamas fighters committed when they entered southern Israel on Oct. 7 and for allegations of rape, sexual violence, and torture during the Oct. 7 attack and in the seven months since. On the flip side, the ICC prosecutor has asked the Netherlands-based court to approve charges against Mr. Netanyahu and Mr. Gallant for allegedly allowing the Israeli military to use starvation as a wartime tactic in their ongoing response to the Oct. 7 attacks and for allowing attacks striking civilian populations in the embattled territory.

President Biden expressed further outrage that Mr. Khan would seek to charge the Israeli leaders just as he is with the Hamas terrorist leaders.

“Let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” President Biden continued. “We will always stand with Israel against threats to its security.”

Secretary of State Antony Blinken similarly rejected any sense of equivalence between Hamas and the Israeli state suggested by Mr. Khan’s decision to target leaders of both factions.

“Hamas is a brutal terrorist organization that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans,” Mr. Blinken said in a press statement.

ICC Has No Jurisdiction Over Either Side: State Dept. Spokesman

Mr. Blinken and the U.S. State Department further contend that the ICC lacks jurisdiction to bring charges relating to the ongoing conflict in the Gaza Strip.

Asked at a department press briefing whether the U.S. government favors Mr. Khan’s calls to arrest Hamas leaders, State Department spokesman Matthew Miller said, “We do not believe that they have jurisdiction over either of the parties.”

Asked to explain who would have jurisdiction to hold the Hamas leaders accountable, Mr. Miller said Hamas leaders could see justice done “by being killed” or by being tried in an Israeli court.

Mr. Miller said the U.S. government’s position is that the Palestinian people would have no standing before the ICC “because the Palestinian people do not represent a state.”

Asked where the Palestinian people would go for redress of concerns about how Israeli forces are prosecuting the ongoing war in the Gaza Strip, Mr. Miller said the Israeli side has mechanisms for reviewing and investigating allegations of misconduct by Israeli forces and that the U.S. side has its own mechanisms for reviewing whether Israeli forces are complying with international humanitarian law.

“So there are places to look at these questions. It’s just, in our view, fundamentally not a role of the ICC,” Mr. Miller continued.

Along with its contention that the ICC lacks jurisdiction over these cases involving Israel and Hamas, the State Department also accused Mr. Khan of short-circuiting an investigative process by announcing his decision to seek charges before first meeting with Israeli officials to discuss the matter and consider their views.

Congress is ‘Reviewing All Options’ Against ICC: Speaker Johnson

House Speaker Mike Johnson (R-La.) offered his own condemnation of the ICC on Monday.

“The ICC has no authority over Israel or the United States, and today’s baseless and illegitimate decision should face global condemnation. International bureaucrats cannot be allowed to use lawfare to usurp the authority of democratic nations that maintain the rule of law,” the Republican House speaker said in a press statement.

“Israel is fighting a just war for survival, and the ICC is attempting to equate Israeli officials to the evil terrorists who perpetrated the October 7th massacre,” Mr. Johnson continued. “It’s clear the ICC’s decision has been advanced due to the Biden Administration’s pressure campaign against Israel and its outlandish State Department investigations.”

The ICC has yet to decide on Mr. Khan’s application for arrest warrants against either the Israeli leaders or the Hamas leaders. A three-judge panel on the Netherlands-based court will decide whether Mr. Khan’s cases can proceed, and these deliberations could take weeks. Nevertheless, Mr. Johnson has announced the U.S. House of Representatives is weighing its own options to undercut the international court. The Republican House speaker also took the opportunity to jab at President Biden’s Democratic administration.

“In the absence of leadership from the White House, Congress is reviewing all options, including sanctions, to punish the ICC and ensure its leadership faces consequences if they proceed,” Mr. Johnson said. “If the ICC is allowed to threaten Israeli leaders, ours could be next.”

Reps. Chip Roy (R-Texas) and Elise Stafanik (R-N.Y.) have already prepared a bill dubbed the “Illegitimate Court Counteraction Act.” In a May 7 press statement, Ms. Stefanik’s office said this bill would sanction and revoke the U.S. travel visas of any ICC employee or associate “involved in investigating, prosecuting, or assisting in the investigation or prosecution of current or former U.S. soldiers or officials or the current or former officials or troops of any ally of the United States which does not recognize the authority of the ICC.”

The Republican lawmakers began preparing this legislation earlier this month as reports first began to indicate potential ICC action against Mr. Netanyahu or other members of the Israeli government.

Sanders, Omar Say ICC Prosecutor is Right to Pursue Charges

Some of President Biden’s U.S. political allies broke with him over Mr. Khan’s efforts to charge Mr. Netanyahu and Mr. Gallant. While the Biden administration officials condemned efforts to charge the Israeli leaders in the ICC, Rep. Ilhan Omar (D-Minn.) said the international court is operating appropriately in this case.

“The International Criminal Court must be allowed to conduct its work independently and without interference,” Ms. Omar said in a Monday afternoon press statement. “The application for arrest warrants is merely the beginning of a judicial process. The ICC has been a functioning court – it has seen convictions, acquittals, and dismissals, as we would expect from an impartial and non-political judicial body.”

“The allegations from the Prosecutor’s office are significant, and it has long been my belief that the absence of credible processes for justice are a key reason the conflict between Israel and Palestinians continues to escalate,” she continued.

Ms. Omar expressed admiration for the victims of the Oct. 7 Hamas attacks in Israel, as well as the “victims, survivors, and witnesses of the war crimes that have and are taking place in Gaza” for cooperating with Mr. Khan’s investigative team up to this point.

Sen. Bernie Sanders, an independent U.S. senator from Vermont who routinely caucuses with Congressional Democrats, also expressed support for Mr. Khan’s efforts.

Mr. Sanders argued that the ICC has been able to act with legitimacy in other recent cases of international law.

“That includes Russian President Vladimir Putin, whose illegal invasion of Ukraine initiated the most destructive war in Europe since World War II; Yahya Sinwar, the Hamas leader who started the horrific war in Gaza by launching a terrorist attack against Israel, which killed 1,200 innocent men, women, and children; and Israeli Prime Minister Benjamin Netanyahu, who, in response, has waged an unprecedented war of destruction against the entire Palestinian people, which has killed or injured over 5 percent of the population,” Mr. Sanders said in a press statement.

The Vermont senator said whether or not the ICC cases against either the Israeli leaders or the Hamas leaders proceed, “it is imperative that the global community uphold international law.”

‘This is Not a Witch Hunter’ Khan Says

Mr. Khan defended the efforts of his office to pursue charges in the ongoing Israel-Hamas war in an interview with CNN shortly after announcing his application for the charges. The ICC prosecutor insisted his team included a variety of views and backgrounds to ensure a semblance of fairness and balance in his investigative process.

“We have so many people of distinction that are respected and they independently came in. I brought them in, they sat in the evidence review. And this is not a witch hunt,” he told CNN. “This is not some kind of emotional reaction to noise.”

Mr. Khan said he’s faced a variety of criticisms about his process but has pursued efforts to “build evidence that is solid, that will not dissolve in the courtroom.”

NTD News reached out to the ICC prosecutor’s office to comment on arguments that he lacks jurisdiction and has short-circuited the investigative process.

Mr. Khan’s office did not directly address the questions of jurisdiction but insisted they had made efforts to engage with the Israeli side and allow them to pursue their own cases domestically before proceeding with charges in the international venue.

“The Prosecutor has also repeatedly underlined his concerns regarding the adherence of Israel to international humanitarian law and has emphasized publicly that he has not seen any discernible change in conduct despite his earlier statements,” Mr. Khan’s office said in an emailed statement. “The Office will continue its engagement with Israel and all relevant States in relation to this investigation.”

The ICC is supposed to operate on a principle of complementarity, meaning that it will first defer to member nations to adjudicate human rights abuse claims and only pursue its own prosecutions if a given state is unwilling or unable to undertake a legitimate process.

“The Prosecutor has underlined that the assessment of complementarity will be ongoing, as in all situations before the Court,” Mr. Khan’s office said.

The Associated Press contributed to this article.

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