Concern About the International Criminal Court


The International Criminal Court sounds like a serious place. And it is. It was established in 2002 as the permanent court of last resort to prosecute individuals responsible for the world’s most heinous atrocities — war crimes, crimes against humanity and genocide.

The ICC has become a hot topic of discussion lately, as reports have circulated that the ICC is preparing to issue arrest warrants for senior Israeli government officials, including Israeli Prime Minister Benjamin Netanyahu, on charges related to the Israel-Hamas war, focused on claims that Israel has prevented the delivery of humanitarian aid to Gaza and has pursued an excessively harsh response to the Hamas terror attack on Oct. 7. Reports also indicate that the court is considering arrest warrants for leaders of Hamas.

The ICC has 124 member-states, all of whom signed on to what is called the Rome Statute, which created the ICC. Dozens of states have not joined the ICC, including Israel, the United States, Russia and China. States that haven’t joined the ICC do not accept its jurisdiction or its authority.

The ICC has no police force. Instead, it relies on its member-states, which include most European countries, to arrest those named in ICC warrants and deliver them for trial in The Hague. The ICC cannot try defendants in absentia.

Arrest warrants from the ICC pose a serious obstacle to international travel for people named in them. And an ICC arrest warrant also carries the stigma of being labeled an international villain like Russian President Vladimir Putin and Omar al-Bashir, the deposed president of Sudan — both of whom have been charged by the ICC, though neither one has been tried.

Reactions on Capitol Hill to reports of possible ICC action against Israeli leaders have been intense. Senate Majority Leader Chuck Schumer (D-NY) accused the ICC of a decades-long bias against Israel and urged the Biden administration to send a strong message opposing the issuance of arrest warrants against Israeli officials. House Speaker Mike Johnson (R-La.) joined the request, calling the possible issuance of arrest warrants “disgraceful” and a threat to U.S. national security interests. Other members of Congress have threatened strong consequences for the ICC if it goes forward with the issuance of charges.

But, most significantly, there is concern in Washington and in Jerusalem that the issuance of criminal charges by the ICC against Israeli officials would adversely affect ongoing hostage and temporary cease-fire negotiations, give comfort to Hamas by confirming that its campaign continues to gather war-weary international support and unleash a wave of antisemitism around the world.

The ICC may be a paper tiger and may not even have jurisdiction to pursue criminal charges against Israeli officials, but the court’s chief prosecutor, Karim Khan, has asserted the right to do so — based in part on the ICC’s acceptance of “The State of Palestine” as a member in 2015 — and has not backed down under mounting international pressure.

We worry that the Kabuki theatre of the ICC will continue and that arrest warrants will be issued. Resolution of the ICC charges will then become another international distraction that will need to be addressed in the increasingly complex and sensitive efforts to resolve the Gaza war.


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