Does US rejection of ICC orders against Israel hold weight?

International Criminal Court (ICC) Prosecutor Karim Khan's statement earlier this week that arrest warrants may be issued for Israeli prime minister Benjamin Netanyahu and defence minister Yoav Gallant has sparked strong reactions from American lawmakers.

US president Joe Biden's administration has threatened to sanction the ICC in response, with Biden slamming the decision as "outrageous," and pledging to stand with Israel as the process plays out.

"Given the events of yesterday, I think we have to look at the appropriate steps to take to deal with again, what is a profoundly wrongheaded decision," Antony Blinken, the US Secretary of State, said at a budget hearing with the Senate Foreign Relations Committee, after saying he intended to work with Congress on legislation to penalise the ICC.

In addition to naming Israeli officials, Khan has also requested arrest warrants for Hamas' Ismail Haniyeh, Yahya Sinwar, and Mohammed Deif. A panel of three ICC judges will review the evidence presented by Khan's office to determine if the warrants will be issued.

Based on past cases, the process could take anywhere from a few weeks to a few months, Sergey Vasiliev, associate professor at University of Amsterdam’s Law Faculty said in an interview.

This isn’t the first time Biden has defended Israel, which is also accused of commiting Palestinian genocide at the International Court of Justice (ICJ), against war crimes charges in the world’s top courts.

"Let me be clear: we reject the ICC's application for arrest warrants against Israeli leaders. Whenever these warrants may apply, there is no equivalence between Israel and Hamas," Biden said at a celebration for Jewish American Heritage Month at the White House.

“Contrary to allegations against Israel made by the International Court of Justice (ICJ), what’s happening in Gaza is not genocide. We reject that,” Biden said in his speech.

"The Gaza genocide has, repeatedly, shown that there is no such thing as US Middle East policy," Libyan academic and freelance journalist Mustafa Fetouri wrote. "Instead, there is Israeli policy and the US officials and lawmakers will only do what pleases Tel Aviv, even if that means damaging the US's own interests."

How will these sanctions potentially work?

America has sanctioned the ICC and its staff before. On September 2, 2020, the US government imposed sanctions on an ICC prosecutor, Fatou Bensouda, and another senior official, Phakiso Mochochoko, who were investigating whether US forces committed war crimes in Afghanistan.

Earlier in June that year, then-president Donald Trump had issued an executive order, allowing the US to effectively block the assets of ICC employees and stop them entering the country.

Bensouda and Mochochoko were also added to the US Department of Treasury’s Specially Designated Nationals and Blocked Persons List (the SDN List), making it almost impossible for them to conduct any financial transactions, globally.

The majority of major financial institutions around the world often decline to engage in business with individuals on the SDN List. This means that the impact of sanctions goes beyond just freezing assets physically located in the US.

By rejecting ICC orders, the US joins other "ICC rejecters" including North Korea and Syria, besides Russia — countries, according to Fetouri, "usually described by Washington as rogue states."

"However," Fetouri continued, "the US is the only country in the world to pass a law giving its president the power to use any means available, including invasion, air bombardment, blackmail and even kidnapping, if necessary, to stop the ICC from prosecuting any American soldier in the custody of the ICC accused of some crimes—and there are plenty of them who fit this category of criminals."

Above the law

The US and Israel have not signed the Rome Statute that created the ICC, and do not consider themselves obligated by it either. The ICC, established by a UN treaty in 2002, investigates and prosecutes individuals responsible for genocide, crimes against humanity, and war crimes when national authorities are unable or unwilling to do so.

On April 1, 2021, Biden issued an executive order lifting the Trump-era sanctions, noting that "The threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States' concerns with the ICC."

But, added secretary Blinken in a statement: “ We continue to disagree strongly with the ICC's actions relating to the Afghanistan and Palestinian situations.

"We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions."

Support for ICC

Some Democrats who have expressed their support for the ICC's actions this time around include Minnesota Congresswoman Ilhan Omar. In a statement on May 20, Omar said, "The International Criminal Court must be allowed to conduct its work independently and without interference.

“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."

It is unclear whether any sanction efforts have garnered enough support to advance through either the Republican-led House or the Democrat-controlled Senate.

Although the Biden administration rejected the court's jurisdiction over Israel it had previously praised the ICC's decision to issue arrest warrants for senior Russian officials, including President Vladimir Putin, for Russia's war with Ukraine. Like Israel, Russia is also a non-signatory to the Rome Statute.

ICC member responsibilities

Neve Gordon, a professor at the Faculty of Law, Department of International Law and Human Rights at Queen Mary University of London, told Anadolu Agency the news of the arrest warrants is contributing to Israel "becoming a pariah state," and that the ICC's 124 member states are legally obligated to apprehend anyone subject to an arrest warrant issued by the top world court.

Gordon expressed scepticism about the effectiveness of potential sanctions threatened by Republican senators in the US in the event of arrest warrants. He remarked, "I doubt that will fly in the US Congress and Senate. I think it was more a kind of performative by the senators."

The ICC's potential warrant for Netanyahu could also create a dilemma for Western nations.

While some, such as France, Germany, and Italy, recognise the ICC and are technically obligated to arrest Netanyahu on their soil, it remains uncertain whether they will do so.

France, Germany, Sweden, and Denmark, at the same time, have advocated for the ICC and stressed the importance of upholding the rule of law.

Norwegian Foreign Minister Espen Barth Eide said that if the Hague Tribunal issues arrest warrants for Netanyahu and Israeli defence minister Yoav Galant, Norway would be required to detain them if they enter the country.

"We expect that all state parties to the ICC will do the same," Eide noted.